Surendra Nath Dutta vs Upen Chendra Dev

K. Lahiri, J.—This revision petition is directed against the order dated (sic) passed by the executing court in Title Execution Case (sic) 11 of 1979.

The Opposite Party instituted a suit for ejectment in respect (sic)suit premises and for arrears of rent. The suit was decreed. (sic) decree was, obtained as far back as on 17.8.77. There was (sic) appeal by the Petitioner Defendant which was rejected. There (sic). Title Execution Case No. 11 of 1979 was instituted for (sic) the Petitioner from the suit-land and for the recovery (sic) the decretal amount. The decree holder filed an application (sic) that during pendency of the execution proceedings, the (sic) judgment debtor had extended the suit house by constructions an (sic)conditional house within the suit land and prayed for issuance (sic) possessory warrant for delivery of possession of the suit houses (sic) on demolition of the new structure constructed by the Petitioner judgment debtor ''pendente lite''. The Opposite Party exa(sic) two witnesses in support of his case. After the evidence P.W. 1 had been recorded, the Petitioner filed an application (sic) 395 of 1981 questioning the maintainability of the petition(sic) by the decree-holder. However in that petition the judgment (sic) did not specifically deny the allegations made by the decree (sic) that he (the judgment-debtor) had extended the adjacent(sic) within the land of the Petitioner. The relevant findings (sic) executing court are quoted hereinbelow:

In that petition to, the O.P. did not specifically deny the allegation of doing the extension adjoining the suit rooms within the land of the Petitioner.

So, I come to the conclusion that the extension done by the O.P. is within the land of the Petitioner and that is adjoining the suit rooms.

It follows, therefore, that the extension done by the Petitioner found to be "within the land of the Petitioner". Apparently this finding of fact has been reached by the executing court on materials on the record. There is also no denial that it was done ''pendente lite�.

Learned Counsel for the Petitioner submits that all such constructions being made during the continuance of the suit or the execution proceedings, no could be taken up or preceded against the Petitioner in respect of the extended portion of the construction.

I am of the firm opinion that when a patty to a suit puts up fresh or additional construction ''pendente lite'', which of course includes the execution proceedings, the executing courts do Undoubtedly possess power and jurisdiction to order demolition of the structures and deliver vacant possession to the decree holder. This, in substance, is what I find in Order 21 Rule of 35 of the Code of Civil Procedure. In the instant case the Defendant-judgment debtor has put up construction ''pendente lite'' i.e. during the course of the execution proceedings, therefore, the court can order demolition of the structure and deliver vacant possession.

However, the executing court may grant time to the judgment-debtor to remove construction made ''pendente lite''. There is no law for the time being in force that by making a new construction in a suit land a party to the litigation can obtain immunity from execution. No such law has been placed before me. On the hand, I find the power of the execution court. To execute the decree is very much there in Order 21 Rule 35 of the Code of Civil Procedure. When constructions are put up during the pendency of the suit of after making of the decree the executing court can always order for demolition of the structures and deliver possession of the suit property to the decree holder. This view finds support in Ram Charan Sikdar Vs. Sm. Jogamaya Basu and Another, and Ramrup Rai Vs. Mst. Gheodhari Kuer and Others, In Ramrup (supra) while considering the scope of Order 21 Rule 35, their Lordships observed as follows:

It cannot be disputed that where the Defendant putt up construction pendente lite or after the passing of the decree, then the executing Court can order demolition of the structures and deliver vacant possession. Bat where the constructions are put up before the institution of the suit, the executing court cannot order demolition of the structures, but would simply deliver possession of the land and the buildings after removal of the judgment-debtor there from. In either case, however the court may before ordering delivery of possession give time to the judgment-debtor to remove himself the materials, if he so liked.

if one turns to Section 108(h) of the Transfer of Property Act, 1882, one finds the nature of right of a lessee or former(sic) Section 108(h) reads as follows:

(h) the lessee may even after the determination of the lease remove, at any time whilst he is in possession of the property leased but not afterwards, all things which he has attached to the earth; provided he leaves the property in the State in which he received it.

it follows, therefore, that even after the determination of lease, the lessee may remove, at any time while he is in (sic) ssession of the property leased which he has attached to the(sic) but not after he is dispossessed. However while taking the materials attached to the earth he must leave the property in the state in which he received it and the expressions "attached to the earth" is defined in Section 3 of "the Act'' which includes building or structures.

Therefore, it follows when the executing court reached the conclusion that the constructions were made on the suit land (sic) lite'', it had jurisdiction to order for demolition of the lure and deliver vacant possession to the decree-holder, as (sic) has done in the instant case. In this view of the matter, the (sic) of the Petitioner fails.

Mr. P.K. Baruah, learned Counsel for the Petitioner submits (sic) there are two other applications filed on 19.6.79 wherein (sic) Petitioner questioned the validity of the execution proceedings and these were never considered by the executing court, Counsel prays for a direction to the executing Court to consider the applications and to dispose them accordingly to law. I can say this far and no further that if there are such applications which have not been disposed on merits, the executing Court shall duly consider and dispose them in accordance with law provided the Petitioner makes an application to the trial court to consider the said applications.

In the result the petition is dismissed. Send down the records forthwith. There will be no order as to cost.