- (1.) This Rule raises the question whether the Court, in ordering delivery of possession under Order 21, Rule 95, Civil P. C. can order removal of the huts standing on the land, where the auction-purchaser, who asked for delivery of possession, had purchased the land but had not purchased the huts.
(2.) The words of Order 21, Rule 95 make provision for removing any person who refuses to vacate the property of which possession is to be given. Specific provision has not, however, been made therein for removal of any structures.
(3.) Reliance is placed by Mr. Bakshi, on behalf of the petitioner, on the observations of Rankin C. J. in the case of The Government of Bengal v. Alimaddin, 57 C. L. J. 41 : (A. I. R. (20) 1933 Cal. 469: 34 Cr. L J.826), which though a criminal case, did raise this question of the duties of the Court's officers acting under a writ under Order 21, Rule 95, Civil P. C. The question which arose there was whether the accused persons had any right of private defence against the act of the officer in demolishing the huts. The Nazir was sent there to execute a writ under Order 21, Rule 95. The learned trial Magistrate had held that the Nazir was not entitled to demolish the structures and so the plea of private defence was available to the accused persons. In considering this question, Rankin C. J. said that it cannot be said for a moment that because the ordinary writ under Order 21, Rule 95, Civil P. C., does not particularly mention delivery of huts, or removal of huts, the huts cannot be removed. His Lordship proceeded to observe : "The auction-purchaser is entitled to get the property without the property being burdened with those huts. As a part of delivering possession, the taking down of those huts does not appear to have done with any disregard to any right of the judgment-debtors which they had under the proper procedure.";