- (1.) Astonishingly the Executing Court has proceeded beyond the decree passed by the Trial Court in recording the satisfaction of the decree upon delivery of the peaceful possession to the decreeholder. The decree-holder filed a suit for declaration of easement right over the drain for the purpose of taking water therefrom to his property described in schedule 'Ka' to the plaint and permanent injunction restraining the defendant from creating any obstruction and/or disturbance in exercising or enjoying the easement rights over the said drain.
(2.) The said suit is decreed on contest. An execution case is filed obviously alleging that the petitioner is creating obstructions in peaceful enjoyment of such easement right of taking water from the drain. Curiously enough the Executing Court issued a Writ of possession to the bailiff for its due execution, even an application under Rule 208 of Civil Rules and Orders is allowed by the Executing Court extending police help to the bailiff in execution of such Writ. My attention is drawn to the report submitted by the bailiff, wherefrom it appears that he has directed the decree-holder to dig the drain as mentioned in the schedule of the warrant and have delivered the possession of the decretal drain. Immediately upon receiving the report from the said bailiff the Executing Court proceeded to record that once the Writ of possession is issued to the bailiff under Order XXI Rule 35 of the Code of Civil Procedure and having executed the execution case is disposed of on satisfaction.
(3.) It is profitable to quote Order XXI Rule 35 of the Code, which runs thus: (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delilvery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. (2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree. (3) Where possession of any building or enclosure is to be delilvered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.";