MOHD. ISMAIL Vs. ASHIQ HUSAIN

JUDGEMENT

(1.) This is an Execution Second Appeal by Mohammad Ismail, decree -holder, against the order of the Civil Judge of Eoorkee at Saharanpur, allowing the appeal of Ashiq Husain (since dead), judgment -debtor, and holding that in the execution of a decree for possession, possession could not be delivered after removal of the constructions.

(2.) The learned Civil Judge placed reliance upon the case of Kauk Sike v/s. Ong Hock Sein, AIR 1927 Rang 82 but failed to realise the importance of this decision and also what order was eventually passed, otherwise he would have known that this decision was more damaging to the judgment -debtor as thereby the building would go under the control and possession of the decree -holder if not removed before the delivery of possession and thereby the judgment -debtor would be put to a great loss. If the materials of the constructions are removed by the judgment -debtor, he would be in a position to use them in constructing another house or he would be in a position to make some money by their sale. But if it is for the decree -holder to consider after he has obtained possession whether the constructions be removed or not, the judgment -debtor cannot take advantage of the materials of the constructions.

(3.) The facts of the instant case, in brief, are that at the time of the institution of the suit no constructions stood on the land in dispute. The judgment -debtor had merely dug the foundations. This is why only reliefs for possession and permanent injunction were sought for and there was no prayer for the removal or demolition of the constructions. The judgment -debtor had however, completed the ground floor before the matter of temporary injunction could be finally decided.