DURAISAMI MUDALIAR Vs. RAMASAMI CHETTIAR AND ANR.

JUDGEMENT

(1.) THE first defendant/judgment -debtor in O.S. No. 356 of 1963 on the file of the District Munsif, Dharapuram, is the petitioner in this revision petition. The first respondent herein is the decree -holder/plaintiff in the suit. Certain facts are not in dispute. The plaintiff obtained a decree declaring his right over the suit vacant site and for possession of the same. Both the trial Court as well as the appellate Court made it clear that the decree for declaration and possession is referable only to the vacant site and not to the superstructure, which is said to be in the nature of a bunk shop and is said to have been put up by the first defendant even prior to the institution of the suit. No relief is said to have been claimed by the first defendant in respect of this superstructure. The plaintiff levied execution of the decree in E.P. No. 155 of 1977. The first defendant filed E.A. No. 243 of 1977 praying for an order that the plaintiff is not entitled to possession of the superstructure mentioned in the decree. Obviously this is an attempt to stultify the execution of the decree for possession. The contention urged by the first defendant in the first Court as well as in the lower appellate Court is that in the absence of a decree directing the removal of the superstructure, the decree in the suit for delivery of possession of the suit site alone cannot be executed. Because this contention was not appreciated and accepted by the first Court as well as the appellate Court, the present revision petition has been preferred by the first defendant. The very same contention is being repeated before me.

(2.) THE question for consideration in this revision is when a superstructure has been admittedly put up by the judgment -debtor prior to the institution of the suit and the decree which comes to be passed in the suit does not direct the removal of the superstructure while ordering the delivery of possession, can the execution of the decree be denied to the decree -holder.

(3.) THERE will not be any difficulty with reference to a case where the superstructures came to be put up by the defendant either during the pendency of the suit or after the decree. In such a case, in execution of the decree for possession, the executing Court can order the removal or demolition of the construction made during the pendency of the suit or after the decree. Such was also the view expressed in Narain Singh v. Imam Din, A.I.R. 1934 Lah. 978 and that has been followed by D.S. Mathur, J., in Mohd. Ismail v. Ashiq Hussain : AIR 1970 All 648, suggesting appropriate directions according to the needs of particular cases.