- (1.) PIARA Singh and Bachan Singh respondents in this revision filed a suit against Kehar Singh, for a permanent injunction, restraining him from interfering in their possession over the Abadi plots (Alf) 2/1 and (Alf) 2/2, situated in the area of village Gurdaspur or in the alternative for possession of those plots by way of demolition of the construction made over them by Kehar Singh, defendant-respondent. In the plaint it was alleged that Kehar Singh had started stocking building material-on his own plot for making encroachment on the disputed plots while the said plaintiffs were away from the village. The plaintiffs claimed an alternative relief that the decree for possession of the said plots be awarded to them by demolition of construction, if any. The trial Court found that Kehar Singh defendant had encroached upon the whole of Abadi plot (Alf) 2/1 and upon 611 sq. ft. of area out of the Abadi plot (Alf) 2/2. In respect of the rest of the area out of (Alf) 2/2, an injunction was granted, but in respect of the area over which Kehar Singh' had already encroached upon, decree for possession was granted. It was not. specifically mentioned that possession was to be handed over by demolition of the construction. Kehar Singh filed an appeal before the lower appellate Court, but his appeal was also dismissed on 4-3-1978 and the decree and judgment of the trial Court were affirmed. Kehar Singh filed Regular Second Appeal No. 1345/1978, challenging the decrees and judgments of the Courts below; but the same was dismissed in limine by this Court on 25-9-1978. To enforce this decree for getting possession, the decree-holder moved an execution petition under Order 21 Rule 35 of the Code of Civil Procedure (in short 'the Code') relevant part of which is reproduced as under: 'r. 35. Decree for immoveable property. (i) Where a decree is for the delivery of any immoveable 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 delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. " As the construction in this case was made during the pendency of the suit, the executing Court could direct removal of the construction and possession to be delivered to the decree-holder, as the defendant- judgment-debtor cannot be allowed to frustrate the result of a suit for possession of immoveable property by his own act. The executing Court could also allow the removal of a building material after demolition by the judgment debtor and if the judgment-debtor was not agreable to remove the construction and have the building material, it could be left to the decree holder. To support this view, reliance can be safely placed on case : Mohd. Ismail v. Ashiq Husain,. A. I. R. 1970 All. 648. wherein the following observation was made: "where the constructions were made before the institution of the suit, the rule laid down in the Rangoon case could be adopted; but where the constructions were made during the pendency of the suit, constructions made are against the law and hence, shall be deemed to have been made by the judgment debtor at his own risk and responsibility namely, that he shall not be able to claim any benefit of such constructions during the execution proceeding. When the judgment-debtor had no right to the constructions, he can raise no objection to the removal of the constructions during the execution. Where it appears to the executing court that the costs of removal or demolition of the constructions would excised the costs of material to be fetched after the demolition and the decree-holder is willing to let the construction stand on the land, the rule laid down in (1872) 18 WR 527 (Cal) (supra) can be adopted namely, that it can be left open to the decree-holder to decide what he shall do with the constructions after he is given actual possession of the land along with constructions standing thereon. Thereby the judgment-debtor would not be put to any additional expenses. , But if costs of demolition shall not exceed the costs of the materials and the judgment debtor is willing to release the materials in favour of the deeree -holder free of charges, and the decree-holder is willing to accept the constructions, the executing Court need not direct the demolition of the constructions, the ownership of which would automatically pass to the decree-holder"
(2.) IN Ghanya Lal v. Punjab National Bank, A. I. R. 1928 Lah. 7. it was laid down that any method suggested by the decree-holder for the satisfaction of his decree, which method is not actually prohibited by law, falls within the purview of Rule 1 l (2) (l) (v) of the Order 21 of the Code and an earlier DB judgment reported in AIR 1926 Oudh 616, A. I. R. 1926 Oudh. 616. was referred. In this view of the matter the course to be addopted by the executing Court in such cases has been clearly indicated in this authority and there was no difficulty in doing so by it. In the instant case, the earlier execution petitions were unnecessarily dismissed without reference to the provisions of the Code. If we refer to Rule 11 of Order 21 of the Code, it clearly indicates that the decree-holder, while making an execution petition in writing, could claim the mode of demolition of the construction in which assistance of the Court was required. In clause (j) (v) of sub-rule (2) of Rule 11 of Order 21 of the Code, it is provided as under : "--Written application. (2) Save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely : (a)---- (b)------ (i) the mode in which the assistance of the Court is required, whether (i)--------- (ii)----- (v) otherwise, as the nature of the relief granted may require.-" Sub-clause (v) above clearly indicates that the decree-holder may seek the assistance of the Court in a way as the nature of the relief granted may require. In the present case, decree far possession had to be satisfied and for that purpose, delivery of possession of the land decreed was to be made to the decree-holder. For delivering the possession, demolition could be directed by the executing Court. Even otherwise, possession could be delivered along with the building with a direction to the judgment-debtor to remove the structure at his own expense and have the building material himself, or the decree-holder could be asked to have the building and later on demolish it or retain it with him. The judgment-debtor could seek any other remedy if permitted by law, to claim damages or to claim building material (Malba ). In any case, this course was not adopted in this case. Ultimately, the decree-holder made an application Under Section 153-A, newly added to the Code before the trial Court, to the amendment of the decree and judgment by adding the words "by removal of construction if any" in the penultimate line of the judgment after the words "local commissioner" in the relief clause and also to insert the same words in the decree-sheet after the words "the local commissioner" in the last line of the decree-sheet. The trial Court, purporting to exercise powers under the said section, allowed the amendment as prayed.
(3.) KEHAR Singh judgment-debtor filed this revision which ultimately came up for final hearing before S. S; Sodhi, J. Vide order order dated 22-12-1988, the learned Single Judge referred to Section 153-A of the Code and judgment in Gurbachan Singh v. Maghar Singh, 1983 Rev L. R. . 25. wherein R. N. Mittal, J. interpreted the words "the Court which had passed the decree in the first instance" occuring in Section 153 A of the Code as the first appellate Court in case where the regular first appeal is dismissed in limine. Finding that Gurbachan Singh's case (supra) deserved reconsideration, the learned Judge referred this matter to a larger Bench. This is how the matter has been placed before us.;