Ram Singh vs Gurnam Singh and others

J.V. Gupta, J.—This petition is directed against the order of the executing Court dated 26-5-1988 whereby the execution application was dismissed on the ground that since the judgment-debtor has also become co-sharer in the suit property, proper remedy for the decree holder is to get the property partitioned.

The learned Counsel for the Petitioner submitted that if the judgment debtor Gurnam Singh has also become co-sharer of the suit property in that situation, the decree-holder was entitled to the symbolic possession under Order 21 Rule 35 of the CPC and his execution application as such could not be dismissed. On the other hand, learned Counsel for the judgment-debtor submitted that the only course open to the decree-holder is to apply for partition. He further submitted that suit for separate possession has already been filed by his client Gurnam Singh in the court of Sub-ordinate Judge, 1st Class, Jagadhri, which is pending.

After hearing the learned Counsel for the parties, I am of the considered view that the execution application could not be dismissed by the executing Court since in the decrees for joint possession of the immovable property, symbolic possession could be delivered to the decree holder as contemplated under Order 21 Rule 35 of the Code of Civil Procedure. Admittedly physical possession will be obtained by the decree-holder after the property is partitioned. To this extent this petition succeeds. The operating part of the impugned o(Sic)der is set aside. The parties are directed to appear before the executing Court on 1-6-1999 for passing the appropriate orders.