Law: Civil Procedure Code (V of 1908)

Section: S. 47

  Civil Procedure Code (V of 1908), S. 47 - Trespasser becoming transferee of interests of decree-holder during execution proceedings-Effect.   Civil Procedure Code (V of 1908), O. XXI, r. 35, cl. 1 & cl. 2-Difference in application of cl. 1 and cl. 2-Procedure to be followed consistently with circumstances-Decree for khas possession-Disagreement among decree-holders.   Held, that when there are no anomalous circumstances, which might stand in the way of giving delivery of actual possession of an immovable property in pursuance of a decree for khas posses sion, khan possession can and should be given according to the terms of the decree. If there is no conflicting interest as between the holders of the decree and some obstruction is put up at the instance of the judgment-debtor since the passing of the decree either in shape of erection of structure or otherwise, the judgment debtor can be evicted and possession can be given after removal of such structures in pursuance of the decree following the mode or, procedure in clause (1) of Order XXI, rule 35, Civil Procedure Code 1908. But in a case where it is difficult to hold that there is complete agreement as between the co-sharer decree-holders concerned and there is a likelihood of obstruction or resistance arising as a consequence of any dis agreement between the interested decree-holders, it is safe for the executing Court to follow the procedure laid down in clause (2) of Order XXI, rule 35 of the Code so that while the judgment-debtor concerned might be regarded as bound by such execution and symbolical possession might be deemed to be actual possession in the eye of law so far as the judgment-debtor himself was concerned, yet for all practical purposes of peaceful enjoyment and possession the parties would be required to have adequate relief s from a competent Court either in the form of partition or otherwise.   JUDGMENT   This appeal is directed against an order passed by the learned Subordinate Judge dismissing an appeal preferred by the judgment debtor against an order passed by the learned Munsif dismissing his objection against the maintainability of an execution case and…