- (1.) This revision petition is directed against the order of the First Appellate Court which on appeal affirmed that of the executing court dismissing the objections under Order 21 Rule 100 Civil Procedure Code
(2.) The facts : A tabela now described as a shop situated in Purani Sabzi Mandi, Jagadhari was mortgaged by Shri Jagdish Rai, Advocate predecessor-in-interest of the petitioner and respondents No. 2 and 3 with Smt. Gian Bala. The mortgage was redeemed and a final decree for redemption was passed by the civil court on October 25, 1972. The premises were in possession of respondent No. 1 Chuni Lal tenant (for short the tenant). In execution of the decree for redemption, the tenant was evicted and the possession was delivered to the petitioner and proforma respondents No. 2 and 3. The tenant filed an application under Order 21, Rule 100 Civil Procedure Code for restoration of the possession of the property. It was accepted vide order dated April 4, 1976 of the Subordinate Judge, Jagadhri. The petitioner and respondents No. 2 and 3 filed a civil suit for permanent injunction restraining the tenant from taking possession of the disputed premises. Along with the suit, an application under Order 39, Rules 1, 2 Civil Procedure Code was filed which was dismissed by the trial judge and the order was affirmed on appeal by the First Appellate Court. The Subordinate Judge, Jagadhri passed on order dated December 4, 1979 directing delivery of possession to the tenant after over-ruling the objections of the petitioner and respondents No. 2 and 3. The order dated December 4, 1979 was affirmed on appeal by the District Judge, Ambala. The petitioner having failed to successfully resist the tenant from taking possession of the disputed premises filed objections before the executing court stating that the building on the land was demolished by the Municipal Committee and the tenant was entitled to restoration of possession of the buildings and not of the vacant land and since the building had been demolished; the tenant was not entitled to restoration of possession of the vacant land. The application was dismissed by the trial Judge and the order was affirmed on appeal by the First Appellant Court. Hence this appeal.
(3.) The only ground urged by the learned counsel for the petitioner is that the tenant was entitled to restoration of possession of the building and not the vacant land and since the building has been demolished, he is not entitled to possession of the vacant land and in support, of his submission he relied upon Bhan Kumar Chand V. Mohan Lal, 1948 AIR(PC) 180 , Commissioner of Income-tax, Punjab V. M/s Alps Theatre, 1967 AIR(SC) 1437and Mahadeo Prasad Shaw V. Calcutta Dying and Cleaning Co., 1961 AIR(Cal) 70In Bhan Kumar Chand case the High Court as a matter of fact found that the village, the possession of which was decreed in favour of the Decree Holder was inextricably mixed up with other villages that after lapse of more than half of century, it was impossible to find out with reference to any contemporaneous records, as to which lands constituted the village in question and the decree holders were unable to identify the village and the High Court held that the decree holders were not entitled to possession in execution of the decree for possession. The Privy Council, in appeal, agreeing with the finding of fact arrived at by the High Court, dismissed the appeal of the decree holders. The facts of the above case have no applicability to the facts of the instant case. In Commissioner of Income-tax, Punjab case , the only question which arose before the apex court was relating to interpretation of Section 10(2)(vi) of the Income Tax Act and the question for answer was "Whether the cost of land is entitled to depreciation under the schedule to the income-tax Act alongwith the costs of the building standing thereon -. This ruling has no relevance to the instant case. In Mahadeo Prasad Shaw case the court dealt with the frustration of contract as embodied in Section 56 of the Contract Act and examined the scope of Section 108 of the Transfer of Property Act vis-a-vis. It was found that the provisions of the former section stood substantially incorporated in the latter section. The question before the Bench arose in the following circumstances :- The landlord got an ex parte decree for possession against the tenant. In execution of the ex parte decree, he obtained possession. The tenant moved an application under Order 9, Rule 13 Civil Procedure Code for setting aside the ex parte decree and the ex parte decree was set aside. During the pendency of certain proceedings in the High Court under the order of the Calcutta Corporation one of the structures which was standing on the demised premises was demolished. The tenant applied for restoration of possession under Section 144 Civil Procedure Code after the ex parte decree was set aside. The landlord filed objections on the ground that the Corporation demolished one of the structures and there has been a frustration of the contract within the meaning of Section 56 of the Contract Act. The landlord's objections were ruled out by the executing court and the order was upheld on appeal by the High Court. The Calcutta High Court held that the lease of the demised premises has not been frustrated because of demolition of one of the structures and the tenant was entitled to restoration of possession of other portion of the property leased out to him and the extent to which he has been deprived of possession of that portion of the property on which superstructure has been demolished, he would be entitled to abatement of rent. The question which arose before the Calcutta High Court was entirely differently than the one in the instant case.;