ORDER
Syed Shah Mohammed Quadri, J.
1. The first petitioner, decree-holder in O.S. No. 16 of 1974 on the file of the Fourth Additional District Munsif, Visakhapatnam, filed this Civil Revision Petition. She died during the pendency of the CRP and petitioners 2 and 3 are brought on record as her legal representatives. She filed the said suit against the first respondent alleging that the suit property was let out to her on a monthly rent of Rs. 100/-; she fell in arrears in payment of rent; that she inducted respondents 2 and 3 into possession of the suit property; denied her title and relationship of land-lady and tenant and claimed title to the suit property by adverse possession. The suit was filed for declaration of title of the plaintiff and for recovery of possession of the suit property by demolition of the structure raised by the first respondent and for recovery of mesne profits. After contest the suit was decreed by the trial Court on 8-2-1980. The first respondent carried the matter in appeal, A.S. No. 97 of 1980 on the file of the Second Additional District Judge, Visakhapatnam. On 31-12-1981 the appellate Court dismissed the appeal. It appears that the matter was carried in Second Appeal to the High Court; but the Second Appeal was also dismissed. Thereafter, the first petitioner filed E.P. No. 278 of 1980 under Order XXI Rule 35 of CPC praying the executing Court to deliver vacant possession of the suit land after evicting the judgment Debtors. By an order dated August 5, 1983, the learned Fourth Additional District Munsif, Visakhapatnam, executing Court, dismissed the E.P. It is against this order, the present CRP is filed.
2. The learned Counsel for the petitioners contends that the executing Court gravely erred in dismissing the E.P. taking the view that as there were no directions in the decree to remove the structure so the executing Court cannot remove the structure and handover the vacant possession of the suit land to the decree holder. On the other hand the contention of the learned Counsel appearing for the respondents-judgment-debtors, is that though the petitioner claimed the relief of removal of the structure and for delivery of possession, the trial Court only granted decree for vacant possession and as such the decree-holder is not entitled to get vacant possession of the land and the executing Court rightly dismissed the E.P.
3. The short question that arises for consideration is: Does the executing Court lack jurisdiction to execute a decree for delivery of possession of the land by evicting a tenant-judgment-debtor, if there are structures raised by him before filing of the suit and the decree is silent with regard to their removal?
4. In an application under Order XXI Rule 35 CPC which provides that where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and if necessary, by removing any person bound by the decree who refuses to vacate the property, the executing Court is bound to deliver possession of the suit property to the decree-holder by removing the judgment-debtor there from. However, the question what relief could be granted by the executing Court in an application filed under the said provision, depends on the terms and conditions of the decree and this question has to be answered on a proper interpretation of the decree itself. If any difficulty is felt by the executing Court due to the fact that structures were in existence on the suit land on the date of the decree and there is no direction in the decree for their removal, the proper course for it would be to grant the judgment-debtors reasonable time for removing the structures and if the judgment-debtors fail to do so, to deliver possession of the suit land along with the structures to the decree-holder by evicting the judgment-debtors. The fact that the trial Court granted decree in favour of the decree-holder for possession of the suit land by evicting the tenant-judgment-debtor, presupposes that it gives liberty to the judgment-debtor to remove the structures by himself. This is because Section 108 of the Transfer of Property Act provides that the lessee may even after determination of the lease, remove at any time while 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.
5. Now I shall refer to the judgment cited at the Bar. In Duraiswami Mudaliar v. Ramaswami Chittiar, 1979 (1) MLJ 6 (SN), Mr. Justice Nainar Sundaram (as he then was) held that where the super, structures were put up before the institution of the suit and were not ordered to be removed as a part of the mandate in the decree, the proper course would be to direct the judgment debtor to remove the superstructure put up by him so as to effectuate vacant delivery of the suit site to the decree-holder. In that case, the suit was for declaration of title to the suit property which was a vacant site and for recovery of its possession. The judgment-debtor had raised superstructures before the institution of the suit. The suit was decreed, but there was no direction in the decree for the removal of the superstructure. On the question whether the execution of the decree for possession could be granted, the learned Judge held as noted above.
6. In Rampur Rai v. Ghedhari Kuer, , a Division Bench of Patna High Court held that where the constructions were put up before the institution of the suit, the executing Court should not order demolition of the structures, but it would simply deliver possession of the land and buildings after the removal of the Judgment-debtor therefrom. It also observed that the Court might give time to the judgment debtor to remove himself the materials, if he so liked.
7. Reverting to the facts of this case the first petitioner filed execution petition under Order XXI Sub-rule (1) of Rule 35 of CPC. The respondents were parties to the suit and are bound by the decree. Here it will be necessary to read the decree, passed by the trial Court as confirmed in appeals, which is sought to be executed. It is in the following terms:
“That it is hereby declared that the plaintiff is entitled to the plaint schedule site of an extent of 70 sq. yards., i.e., 58.53 sq. meters covered by T.S.No. 272 of the Market Yard in Visakhapatnam Municipality;
(2) that the plaintiff do recover possession of the plaint schedule site evicting the defendants therefrom;
(3) that the defendants are granted three months time for vacating the plaint schedule site and to deliver the possession of the same to the plaintiff;
(4) that with regard to the rents payable that they shall be determined on a separate application under Order 20 Rule 12 of the Civil Procedure Code taken out by the plaintiff; and
(5) that the defendants do pay the plaintiff a sum of Rs. 765.00 towards costs in this suit.”
8. Paras 1 to 3 of the decree extracted above, are relevant for purposes of this CRP. The first para of the decree declares the title of the first petitioner to the suit property. The second para grants relief of recovery of possession of plaint schedule property by evicting the respondents therefrom. The third para, however, grants three months time to the respondents to deliver possession of the suit schedule property to the plaintiffs. It was open to the respondents to remove the structures within the time granted by the decree. But they failed to do so and objected to the execution of the decree on the ground that the structures were in existence on the suit land and as the decree did not contain any direction for removal of the structures so the possession of the suit land could not be delivered to tine first petitioner by the executing Court. The executing Court accepted this contention and dismissed the Execution Petition. In my view this is wholly untenable objection. By their failure to comply with one of the terms of the decree, they cannot defeat the decree itself. For the aforementioned reasons and applying the principle laid down above, in my view, the trial Court committed an error of jurisdiction in declining to execute the decree and passing the order under revision.
9. From the above discussion, it follows that the order under revision cannot be sustained and it is, accordingly, set aside. The case is remitted to the executing Court to execute the decree in the light of this order and in accordance with law.
10. The learned Counsel appearing for the respondents prays for time to remove the structures on the suit land and to vacate the same. Heard the Counsel for the petitioners. Having regard to the facts and circumstances of the case, I consider it just and appropriate to grant six months time to the respondents to remove the structures raised by the first respondent and existing on the suit property. Before the expiry of the said period the respondents shall remove the structures raised by them and vacate the suit land. In the event of the respondents failing to do so, it would be open to the executing Court to deliver possession of the land along with structures to the petitioners herein.
11. The CRP is allowed; but having regard to the circumstances of the case without costs.