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 Roorkee 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 construc tions.

(2.) THE learned Civil Judge placed reli ance upon the case of Kauk Sike v. 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 judg ment-debtor as thereby the building would go under the control and possession of the decree-holder if not removed before the deli very 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 Eosition to use them in constructing another ouse 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 construc tions be removed or not, the judgment-debtor cannot take advantage of the materials of lie constructions.

(3.) AFTER the constructions were made by the judgment-debtor, the Plaintiff did not apply for amendment of the plain tand hence he was simply granted a decree for posses sion and injunction. When this decree was put into execution, the judgment-debtor raised an objection that the removal or de molition of the constructions could not be ordered by the executing court. The objection was repelled by the executing court but in appeal the learned Civil Judge allowed the objection holding that in execution of the decree for possession, there could be no re moval of the constructions.