B. GANGADHAR versus B.G. RAJALINGAM

Citation: [1995] SUPP. 1 S.C.R. 535 · Decided: 12-05-1995 · Supreme Court of India · Bench: K. RAMASWAMY, S. SAGHIR AHMAD · Disposal: Dismissed

Judgment (excerpt)

B. GANGADHAR 
A 
v. 
B.G. RAJALINGAM 
MAY 12, 1995 
[K. RAMASWAMY AND S. SAGHIR AHMAD, JJ.] 
B 
Code of Civil Procedure 1908 
Order 21 Rules 35(3).101-Execution proceedings-Questions relating 
to right, title or interest in the property-Executing Court mandated to C 
decide-Not by way of a separate suit-Tenant need not eonominee be 
impleaded as party defendant-Nor is it an impediment to remove obstruction 
put up by them to deliver possession to the decree holder. 
The petitioner was a judgment-debtor. Respondent laid a suit for 
declaration of title to and possession of a certain property. The trial Court D 
issued the declaration and directed the petitioner to hand over the vacant 
possession to the respondent. 111e decree had become final. When the 
warrant was issued execution for delivery of possession the bailiff returned 
it on the ground that the petitioner bad constrncted shops and inducted 
tenants into possession and that therefore he could not execute the war-
E 
rant. On an application from Respondent, the executing court directed 
bailiff by warrant to demolish the shops and to deliver vacant possession 
to Respondent. Revision preferred by the petitioner was dismissed. 
In this Special Leave Petition, the petitioner contended that in the 
absence of mandatory injunction granted in the decree the executing court F 
was devoid of power and jurisdiction to direct demolition of the shops 
constrncted by the petitioner and that the tenants in possession being 
eonomlnee parties to the decree, they were not bound by the decree of the 
trial Court and therefore the direction to dispossess them was illegal. 
• 
G 
Dismissing the Special Leave Petition, this Court 
HELD : 1. The right to ownership of a property carries with it the 
right to its enjoyment, right to its access and of other beneficial enjoyment 
incidental thereto. If any obstniction or hindrance is caused for its enjoy-
ment or use, the owner, of necessity, bas the remedy to have it removed. If H 
535 
536 
SUPREME COURT REPORTS (1995] SUPP.1 S.C.R. 
A any obstruction is raised by putting up a construction pendente lite or 
prevents the passage or right to access to the property pendente lite, the 
plaintiff has been given right and the decree-holder is empowered to have it 
removed in execution without tortous remedy of separate suit seeking man-
datory injunction or for possession so as to avoid delay in execution or 
B frustration and thereby defeat the decree. The executing court, therefore, 
would be justified to order its removal of unlawful or illegal construction 
made pendente lite so that the decree for possession or eviction, as the case 
may be, effectually and completely executed and the delivery of possession 
is given to the decree holder expeditiously. Admittedly, pending suit the 
petitioner had constructed shops and indncted tenants in possession 
C without permission of the court. The only course would be to decide the 
dispute in the execution proceedings and not by a separate snit. [539-F-H] 
Halsbury's Laws of England, IV Ed. Vol.35 paragraph 1211, 1214 : 
Black's Law Dictionary VI ED, referred to. 
D 
2. Rule 35(3) of Order 21 C.P.C. itself manifests that when a decree 
for possession of immovable property was granted and delivery of posses-
sion was directed to be done, the court executing the decree is entitled to 
pass such incidental, ancillary or necessary orders for effective enforce-
ment of the decree for possession. That power also includes the power to 
E remove any obstruction or super-structure made pendente lite. The exercise 
of incidental, ancillary or inherent power is consequential to deliver pos-
session of the property in execution of the decree. No doubt, the decree 
does not contain a mandatory injunction for demolition. But when the 
decree for possession had become final and the judgment-debtor or a 
person interested or claiming right through the judgment-debtor has taken 
F law in his hands and made any constructions on the property pending snit, 
the decree-holder is not bound by any such construction. The relief of 
mandatory injunction, therefore, is consequential to or necessary for effec-
tuation of the decree for possession. It is not necessary to file a separate 
suit when the construction was made pending suit without permission of 
G the court. Otherwise, the decree becomes inexecutable driving the plaintiff 
again for another round of litigation which the Code expressly prohibits. 
[5411-

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