RAMRUP RAI Vs. UNION OF INDIAGHEODHARI KUER

JUDGEMENT

(1.) This is an appeal under Section 47 of the Civil P. C. by the decree-holder. He had filed a suit for declaration of his title to and confirmation of possession or. in the alternative, recovery of possession of certain immvable property and obtained a decree. He has started the present execution case out of which this appeal arises praying for delivery of possession of the property in question after demolishing certain flimsy construction described as Docharas.

(2.) The judgment debtors took objection to the executability of the decree. Their further objection was that there being no direction in the decree to deliver vacant possession, the court could not make any order to that effect in favour of the decree holder. The application of the judgment debtors was registered as a miscellaneous case under Section 47 of the Code. The decree holder filed a rejoinder in the said miscellaneous case and one of the points raised by him was that the objection petition of the judgment-debtors was not maintainable being barred by the principles of constructive res judicata, as no such objection was filed after the service of Order 21, Rule 22 notice and the executing court had already ordered for effecting delivery of possession before the filing of the miscellaneous case. On the filing of the objection petition the execution case was every time postponed until the disposal of the miscellaneous case. The executing court ultimately held that the objection petition was maintainable in law as it was filed before any order under Rule 23 (1) of Order 2l was actually passed by the Court. It further held that the decree was executable and the decree holder was entitled to get delivery of possession over the suit land, but no order for demolition of the structures could be passed as there was no specific direction to that effect in the decree. The miscellaneous case was accordingly allowed in part.

(3.) The decree holder then filed an appeal in the court of appeal below. The lower appellate court also took a similar view and held that "in absence of any direction in the decree to remove and demolish the structures of the defendants from the suit land, no order for removal of the same can be passed by the executing court". The appeal was accordingly dismissed. The decree holder has now come to this court.