JUDGMENT Brijesh Kumar, J. - In this case we find yet another example of circuitous civil litigation where although half a century has passed but the litigation could not come to an end between the parties. In such matters usually all possible ingenuity is pressed into service to retard the progress of the already slow moving proceedings in civil litigation. 2. The facts, in brief, necessary to appreciate the controversy involved in this case are that one Late Sri Jagannath Prasad had obtained a decree, in the year 1936, for sale of the house in question, on the basis of mortgage, against Late Sri Prem Kishan Das, the father of the present petitioner, and others. The house was sold in Court auction which was purchased by the decree holder Jagannath Prasad himself in the year 1942. Jagannath Prasad, the decree holder as well as Sri Prem Kishan Das, one of the judgment-debtors, have died. The present petitioner is son of Late Sri Prem Kishan Das and the opposite party No. 1 Ram Dayal is son of Late Lala Jagannath Prasad. 3. Smt. Sundro Bibi, mother of Late Prem Kishan Das and the grand-mother of the present petitioner filed a suit in the year 1940 for declaration that she was entitled to reside in the house in question during her life time and she could not be dispossessed therefrom. The suit was decreed in her favour and the appeal preferred by Lala Jagannath Prasad, the decree holder and purchaser of the house, failed. In the year 1942 the heirs of Lala Jagannath Prasad moved an application under Order 21 Rule 95 C.P.C for delivery of possession of the house. Objections were filed to the said application by Smt. Sundro Bibi which were sustained evidently on the basis of decree in her favour to the effect that she was entitled to reside in the premises during her life time. In the result, some time in the year 1945 only symbolical possession was given to Ram Dayal, opposite party No. 1 as actual possession could not be delivered in view of the decree in favour of Smt. Sundro Bibi. 4. Smt. Sundro Bibi died in the year 1973. After her death, the opposite party No. 1 moved another application under Order 2t Rule 95 C.P.C in the year 1976. Objections under Section 47 C.P.C were filed by the petitioner. 4. Smt. Sundro Bibi died in the year 1973. After her death, the opposite party No. 1 moved another application under Order 2t Rule 95 C.P.C in the year 1976. Objections under Section 47 C.P.C were filed by the petitioner. One of the objections raised on behalf of the petitioner is that the Court has no jurisdiction to entertain the second application under Order 21 Rule 95 C.P.C as the decree stood satisfied in view of symbolical possession having been delivered to the decree-holder, in execution proceedings initiated by him earlier. It was also pleaded that the petitioner had perfected his right by adverse possession, therefore, the application for execution was liable to be rejected. 5. It appears that issues were framed and several dates were fixed. From the order passed by the Additional District Judge, in revision, it appears that the petitioner himself had moved some applications for adducing evidence in support of his objections. However, suddenly in 1979 the petitioner moved an application with a prayer that the question about maintainability of second application was purely a question of law as well as the other question about perfecting the right by adverse possession, therefore these issues may be decided as preliminary issues. 1 he prayer made by the petitioner did not find favour with the execution Court and the application was rejected by the Additional Civil Judge, Lucknow, by his order dated 20-7-79 with the observation that it would be proper and convenient to decide all the objections under Section 47 of the Code of Civil Procedure together. Aggrieved by the order passed by the Additional Civil Judge, Lucknow, the petitioner preferred a revision which too met with the same fate and it was rejected by the Additional District Judge, Lucknow, by order dated 14-1-1981. The petitioner by filing this writ petition, has impugned the above mentioned two orders passed by the Additional Civil Judge, Lucknow and the Additional District Judge, Lucknow, copies of which have been filed as Annexures-3 and 4 respectively to the petition. 6. On behalf of the petitioner it has been submitted that the said issues are purely legal issues and by their disposal whole case could be decided without any evidence. That being the petition, it has been submitted that the execution Court was bound to decide the issues of law as preliminary issues. 6. On behalf of the petitioner it has been submitted that the said issues are purely legal issues and by their disposal whole case could be decided without any evidence. That being the petition, it has been submitted that the execution Court was bound to decide the issues of law as preliminary issues. In support of his contention learned counsel for the petitioner has placed reliance upon a case reported in Udami Ram Ram Swuroop v. Ghasi Ram Sakhan Lal. AIR 1933 Allahabad 753. In that case an objection was raised by the defendants as to whether the Court had jurisdiction to try the suit or not. Relying upon Order 14 Rule 2 C.P.C as then it stood, it was held that if the Court was of opinion that the case may be disposed of on issues of law, the Court had no option but to decide those issues first as the provisions contained under Order 14 Rule 2 C.P.C to try issues of law first, was mandatory. 7. Learned counsel appearing on behalf of the opposite party No. 1 submitted that the case of Udami Ram ( supra ) is not applicable in view of the amendment of Order 14 Rule 2 C.P.C. in the year 1976. It has been urged that now discretion has been given to the court to decide an issue of law only relating to jurisdiction or bar to a suit as a preliminary issue or along with other issues involved in the case. Another submission made on behalf of the opposite party No. 1 is that Order 14 Rule 2 C.P.C is not applicable to the execution proceedings, therefore, it was not at all necessary that issues should have been framed, therefore, the petitioner could not take resort to the provisions of Order 14 Rule 2 C.P.C to support his contention that issue of law should be decided first as preliminary issue. I propose to deal with both the points raised on behalf of opposite party No. 1. 8. To examine the first point we may have unamended provision contained under Order 14 Rule 2 C.P.C which reads as follows :- "2. I propose to deal with both the points raised on behalf of opposite party No. 1. 8. To examine the first point we may have unamended provision contained under Order 14 Rule 2 C.P.C which reads as follows :- "2. Issues of law and fact.- Where issues both of law and fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit. Postpone the settlement of the issues of fact until after the issues of law have been determined." 9. From a perusal of the above provision there is no room for doubt that it was a mandatory requirement of law to decide such issues of law first by the decision of which the whole or any part of the case would stand disposed of. 10. After amendment of Civil Procedure Code in 1976 Rule 2 of Order 14 C.P.C reads as follows :- "(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue." 11. A perusal of amended sub-rule (1) of Order 14 C.P.C indicates that there is now a mandate of law to the Courts to pronounce judgment on all issues together even though the case may be disposed of on a preliminary issue. A perusal of amended sub-rule (1) of Order 14 C.P.C indicates that there is now a mandate of law to the Courts to pronounce judgment on all issues together even though the case may be disposed of on a preliminary issue. This mandate has however, been relaxed to a limited extent in sub-rule (2) which provides that a Court may (emphasis given) try an issue of law first if, in its opinion, the case or any part thereof may be disposed of on that issue alone provided the issue of law pertains to jurisdiction of the Court or any bar to the suit created by any law. Again the exception contained in sub-rule (2) of Rule 2 only vests discretion in the Court to try such issues of law first which is evident by use of word "may" in sub-rule (2) of Rule 2. Had the intention of the legislature been otherwise, there was no difficulty in using the word "shall" as used in unamended Rule 2 of Order 14 C.P.C as well as in amended sub-rule (1) of Rule 2. The use of the word "may" in sub-rule (2) of Rule 2 has to be seen in the back-ground of the use of the word "shall" in the unamended provision and amended sub-rule (1) of Rule 2. The word "may" has been used in contradistinction to word "shall" used in the other two relevant provisions indicated above. The use of word "may" in my view, is not without any purpose. There seems to be good reason for using the word "may" purposely. From the amended provision it is clear that now the thrust is upon avoiding unnecessary off shoots arising out of decision on preliminary issues. More than often instead of early disposal of the suit it prolongs the proceedings. Therefore it appears that a discretion has been vested in the trial Courts to try or not those two types of legal issues as preliminary issues depending upon the relevant facts and circumstances of a given case. The matter relates to procedure alone, that too regarding the stage at which a particular issue is to be decided. If an issue falling in the category of issues under sub-rule (2) is not decided as preliminary issues, it only postpones its decision. Such issues have still to be decided though along with other issues. The matter relates to procedure alone, that too regarding the stage at which a particular issue is to be decided. If an issue falling in the category of issues under sub-rule (2) is not decided as preliminary issues, it only postpones its decision. Such issues have still to be decided though along with other issues. There may be cases where even on other issue only very little evidence need be led, in such cases the Court may think that decision on all the issues be given instead of only on preliminary issue. There may be many such cases, depending upon facts and attending circumstances of the case where Court may be justified in deciding all issues together. 12. The learned counsel for the petitioner has submitted that the use of word "may" does not necessarily mean that it vests an authority with discretionary power. In this connection he has placed reliance on a case reported in Smt. Ram Devi v. State and others 1963 A.L.J. 894. My attention has been specifically drawn to paragraph 8 of the judgment which reads as follows :- "It is recognised that if the statute authorises any specified persons to do acts for the benefit of others, the authority conferred is coupled with an obligation to discharge the duty by the statutes themselves and in such a case though the word used by the legislature may be 'may' the intention is to impose an obligation upon the authority to discharge his duty with the result that the word 'may' in the context means 'must' or 'shall'. Whether the authorised person is given a discretion or is under a compulsion or an obligation to do a particular act would inevitably depend upon the context in which the word 'may' has been used, the scheme of the statute where in the section using the word 'may' occurs and such other relevant considerations." 13. From a perusal of the paragraph quoted above it is clear that it will depend upon the context in which the word 'may' has been used in particular statute and other relevant considerations. In that case the word 'may' was used in different context which is not applicable in the present case. Reliance has also been placed on a case reported in Sardar Govindrao and others v. The State of Madhya Pradesh 1965 S.C. 1222. In that case the word 'may' was used in different context which is not applicable in the present case. Reliance has also been placed on a case reported in Sardar Govindrao and others v. The State of Madhya Pradesh 1965 S.C. 1222. In that case C.P. and Berar Revocation of Land Revenue Exemption Act was under consideration and on the basis of the nature of duty and power conferred under the relevant provision it was held that word 'may' meant 'shall or must'. Under the relevant Act it was provided that land revenue was to be paid w.e.f. a specified date which was exempted from an earlier Act. With a view to compensate the payee it was further provided that in case where certain conditions existed, the descendants of Ruling Chiefs and Charitable institutions were to be granted pension or some amount for maintenance. The Hon'ble Supreme Court considering the relevant provisions of the Act and Rules framed thereunder came to the conclusion that in cases where required condition existed it was obligatory upon the State to give grants. The Court had also placed reliance upon the following passage from Maxwell's Interpretation of Statutes :- "Statutes which authorise persons to do acts for the benefit of others, or, as it is some times said, for the public good or the advancement of justice have given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they "may" or "shall", if they think fit, "or", "shall have power", or that "it shall be lawful" for them to do such acts a statute appears to use the language of mere permission, but it has been so often decided as to have become as axiom that in such cases such expressions may have-to say the least-a compulsory force, and so would seem to be modified by judicial exposition." 14. In the case in hand the position is different, I, therefore, find that the case of Sardar Govindrao ( supra ) is not applicable to this case. 15. This point was considered in some cases by other High Courts. Reliance has been placed upon a case reported in Bairagi Ch. Das v. Kartika Chandra Pass 1982 Ori. 272. In the case in hand the position is different, I, therefore, find that the case of Sardar Govindrao ( supra ) is not applicable to this case. 15. This point was considered in some cases by other High Courts. Reliance has been placed upon a case reported in Bairagi Ch. Das v. Kartika Chandra Pass 1982 Ori. 272. It has been observed in that case that amended Order 14 Rule 2 makes it abundantly clear that the Court in its discretion may try issues of law as preliminary issues only if those issues relate to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force. In another case reported in Dhirendra Nath Chandra v. Apurba Krishna Chandra 1979 Pat. 34. This question had directly come for consideration whether the power to try an issue of law as preliminary issue is a discretionary power or it is a mandate contained in the relevant provision. It was held that after the amendment the trial Court had discretion to try or not an issue as a preliminary issue. To the same effect are the observations made in a case reported in Hardwari Lal v. Pokhar Mal & others AIR 1978 Punjab and Haryana 230, yet in another case this question had come to be considered directly namely, in a case reported in Usha Sales Ltd. v. Malcolm Gomes & others AIR 1984 Bom. 60 , where it has been held that language used in sub-rule (2) of Order 14 C.P.C. gives discretion to the Court to try an issue of law first and no duty is cast upon the Court to decide any issue as preliminary issue. 16. In view of the discussions held in the preceding paragraphs, I am of the view that after the amendment of Order 14 Rule 2 C.P.C. it is not mandatory to decide question of law pertaining to jurisdiction or bar to suit as preliminary issues even though it might dispose of the suit as a whole or part thereof. The powers vested now in the Court are discretionary. The discretion, of course, is to be exercised in a judicial manner and not arbitrarily and capriciously. No discretion vested in the judicial authorities is absolute. The powers vested now in the Court are discretionary. The discretion, of course, is to be exercised in a judicial manner and not arbitrarily and capriciously. No discretion vested in the judicial authorities is absolute. In an appropriate case, depending upon its facts and circumstances, interference may be called for, where it is made out that the discretionary power had not been judicially exercised. However, in this case no submissions have been made on this aspect of the matter. In any case looking to the facts and circumstances of this case I do not think that it would be a fit case, in exercise of jurisdiction under Article 226 of the Constitution, to interfere with the orders passed by the Courts below ordering trial of the legal issues along with other questions involved in the case and pronounce the judgment on all disputed questions together. 17. The other point raised on behalf of opposite party No. 1 is that Order 14 Rule 2 C.P.C. would not be applicable to execution proceedings, therefore, the petitioner cannot press into service the provisions of Older 14 Rule 2 C.P.C. For decision of certain issues as preliminary issues, I find force in the submission made on behalf of the opposite party. In support of his contention, he has placed reliance upon a case reported in Sheetal Prasad v. Dhon Kumar AIR 1974 Allahabad 175. It was held in that case that it was not necessary that issues be framed in the execution proceedings as Section 141 C.P.C was not applicable in execution proceedings. While so holding this Court had relied upon another case reported in Thakur Prasad v. Fakirullah I.L.R. 17 All. 106 (P.C.) and on a Supreme Court decision reported in D. Bhushayya v. K. Ram Krishnayya AIR 1962 S.C. 1886 . On the above point the Order 14 Rule 2 C.P.C is not applicable to the execution proceedings, reliance has also been placed on a case reported in Mordhwaj v. Bhoodar Das AIR 1955 Allahabad 353 (F.B.). Learned counsel for the opposite party No. 1 has also cited yet another case of Rajasthan High Court reported in AIR 1956 Rajasthan 1 (D.B.). 18. Learned counsel for the opposite party No. 1 has also cited yet another case of Rajasthan High Court reported in AIR 1956 Rajasthan 1 (D.B.). 18. In view of the law laid down in the cases referred to in the preceding paragraph the objection of opposite party No. 1 is sustained that the provisions of Order 14 Rule 2 would not be applicable in execution proceedings, therefore, it is not open to the petitioner to complain that the Courts below erred in not deciding the issue of law first that the Court had no jurisdiction to entertain the second application for execution. 19. We have seen that the suit was filed in the year 1936 and the decree was obtained in 1940. The second application for execution was moved in 1976 and the petitioner was ready to adduce evidence initially but after the proceedings had already prolonged for three years that it was in 1979 that this objection for decision of certain issues a preliminary issue was taken and ultimately the petitioner filed the present writ petition after dismissal of the revision. So, for the last 10 years the application remained pending and it could not be decided due to the untenable plea raised by the petitioner which he pursued up to this Court for trial of certain issues as preliminary issues. 20. For the discussion held above I find no merit in this petition and dismiss the same with costs which I assess at Rs. 500/- to be paid to opposite party No. 1. The interim order staying the proceedings before the execution Court is discharged. Since the application is pending since long it is expected that the trial Court will expedite the disposal of the same.