' Impugned herein are the judgments dated 3-6-1997 of the Executing Court and dated 24-5-1999 of the appeal Court wherein the execution petition of the petitioner was dismissed for the reason that it was time-barred and that it had become not executable because of the subsequent agreement between the parties. The appeal Court, however, modified the trial Court's order by holding that the petition was within time against which no revision petition has been filed by the respondents.
2. The manner in which the. Executing Court has dealt with the petition of the decree-holder is entirely unwarranted in law. It was supposed to have recorded evidence for and against itself and should not have delegated such judicial function/obligation to a Commission. The provision of Order 26, rule 1, C.P.C. Is a qualified one and lays down certain conditions. None of those conditions was existing at the time of passing such order.
3. Not only that but the local Commissioner appointed for the purpose dealt with the entire process off-handedly and entirely in illegal manner. The statement of witnesses were recorded without cross-examination by the other side. The law of evidence in this regard is very firm and admits of no doubt that statement-in-chief without cross is no eviden-e under the law and vice versa.
Similarly, the proceedings of oath have not been conducted in the laid down manner and the requirements have not been properly satisfied. The mode of taking oath by the judgrent-debtor Muazzam Jan has not been reproduced to highlight that how and in what manner he took the oath.
4. As the impugned judgments; orders are based on such proceedings which are entirely illegal and unwarranted in law besides the Courts below have passed the impugned orders in a fashion not recognized by Order 20, rule 5 and Order 41, rule 31 of the ibid Code and both have failed to comply with the statutory requirements and on this score to the impugned orders are a nullity in the eyes of law. ##TSE#
5. For the above reasons, therefore, the impugned judgments/ orders are set aside and the case is remanded to the Executing Court with directions to administer oath, if the parties so agree, to the major legal heirs of Muazzam Jan deceased in the prescribed manner, however, if the mode and manner in which the oath is to be taken is disputed then it shall record evidence of the parties both oral and documentary to determine the nature of oath to be administered whereafter proper, speaking and elaborate judgment to be given strictly in accord with Order 20, rule 5, C.P.C.
Accepting the order to be passed on the basis of compromise. Being an old case, it shall be decided positively within a period of six months and parties are directed to appear before the concerned Court on 30-4-2003. The original record be transmitted to the said Court forthwith.