1. ' WALI MUHAMMAD KHAN, J.---The instant appeal by the heirs of Khanzada Ainuddin Khan and others, decree-holders, through leave of the Court, is directed against the judgment of the Peshawar High Court dated 14-4-1990, whereby their Revision Petition No,140/89 against the judgment of the District Judge dated 22-2-1989 and that of Senior Civil Judge dated 3-6-1986, accepting the objection petition of Feroz Khan and others, judgmentdebtors/respondents herein, to the execution of the possessory decree passed in favour of the appellants and, in consequence, refusing to execute the decree, was dismissed. The leave granting order is as follows: "Leave to appeal is granted in view of United Bank of India Ltd. v. Azirannessa Bewa alias Azizannessa Bewa PLD 1965 SC 274, Ganesh v. Sri Ram Lalaji Mahraj Birajman Mandir and others AIR 1973 Allahabad 116 and Smt. Lalmuni Devi and others v. Shiv Shankar Tiwary and others AIR 1980 Patna 184 requiring the executing Court to identify the property rather than refuse execution."
2. ' The unfortunate and chequed history of the dispute leading to the filing of the instant appeal is that as far back as 1970 a decree tor possession of 8 Kothas with 2 verandahs and courtyard and additional two Kothas with verandahs over an area of 11 Kanals, part Khasra No,1741; situated in the estate of Darband was passed in favour of the appellants against Feroz Khan and other respondents. It is evident from the perusal of the judicial file of Case No,269/1 decided on the same date viz., 28-1-1970 that another suit was filed by Feroz Khan and others respondents herein for declaration that they were owners of land comprised in Khasras Nos.1694, 1703, 1697 and 1707 situated in the same estate; that the entries of the revenue record whereby the appellants were shown owners thereof were wrong and ineffective against their rights; that they were not entitled to claim produce from them; that the suit filed by them for the recovery of arrears of rent and their ejectment in the Revenue Court was not entertainable; and that the filing of the said suit was necessitated on account of the direction made by the Revenue Court to them for the establishment of their title. The suit after contest was disniissed and the appellants declared as owners of the said property and the possession of the respondents thereon as tenants-at-will on their behalf. It is thus apparent that the respondents were tenanting the agricultural land of the appellants detailed above as tenants-at-will and were residing in the disputed property. Since their title was denied in the Revenue Court, the necessity to file the suit for possession of the residential area arose. The respondents during the course of the proceedings of the present Suit No,485/1 of 1969 in which the impugned decree was passed did not deny their possession over the suit Kothas nor raised the objection that the description of the suit property is ambiguous or that they were in possession of larger area in the said Khasra numbers rather they, admitted their possession over the suit area and raised the plea of prescriptive title thereto. Copies of the revenue record right from 1954-55 were brought on the record which were duly referred to in the judgment of the trial Court and the respondents were held in possession but permissive on behalf of the appellants being their tenants cultivating their agricultural land.
3. ' The appellants/decree-holders filed execution application before the executing Court for delivering the physical possession of the decreed property to them by ejecting the respondents/judgment-debtors therefrom. To thwart the process of execution the judgment- debtors/respondents herein filed an objection petition under -section 151 of the Civil Procedure Code alleging therein that the decreed area being part of a bigger area of 382 Kanals 2 Marlas of Khasra No,1741 was not capable of execution as the Khasra number has been sub-divided into several parts and fallen in the possession of various persons including the judgment-debtors and that the decreed area cannot be located at the spot. The learned executing Court took cognizance of this objection petition and embarked upon an inquiry into it. The same was hotly contested by the decree-holders, and the learned executing Court by accepting this objection petition dismissed the execution application vide its order dated 3-6-1986. The appeal and revision filed against it could not succeed, hence the instant appeal through leave of the Court.
4. ' We have heard Mian Younas Shah, Senior Advocate, for the appellants; Mr. N. M. Khan, Advocate, for the respondents; and have perused the record of the case.
5. ' It is worthwhile to mention at the outset that the judgmentdebtors/respondents adopted all possible methods allowed under the law to defeat the execution of the decree passed against then by a competent Court of law. First of all, they filed an application under section 12(2), C.P.C. That the decree dated 28-1-1970 in Suit No,485/1 was obtained through fraud and collusion and was without jurisdiction, which was dismissed by the trial Court on 3-6-1986. However, appeal against it was accepted vide order dated 10-1-1987 and the case remanded for decision on merits to the trial Court. The High Court, however, annulled the judgment of the appellate Court and remitted the appeal back to the District Judge for decision, who in his turn, dismissed the appeal on 22-2-1989 and the revision petition filed against it was also dismissed vide order dated 14-4-1990. The execution proceedings filed against the decree remained stayed. On its restoration the original file was summoned which took sufficiently long time and ultimately it was discovered that the file had been lost. The judgment-debtors raised an objection that the execution proceedings were time- barred but the same did not find favour with the executing Court as the execution had been filed within the statutory period and had been stayed under the orders of the competent Court of law.
6. ' Warrant for the delivery of possession was issued by the executing Court on 10-10-1975, original available on page 10 of execution File No,45/10 of 1975, which was returned unexecuted, with the report of the concerned bailiff dated 28-10-1975 that the judgment-debtors who were present on the spot were shown the warrant but they refused to deliver possession and hence requested for police help. Another such warrant is available on page 20 of execution File No,37/6 whereby not only the delivery of possession was ordered but it was specifically mentioned therein that occupants of the property should be thrown out of the same. A copy of the warrant was also sent to the Patwari Halqa to assist the bailiff in the execution of the warrant and demarcation of the decreed property situated in Khasra No,1741. This warrant was also returned unexecuted with a report that the judgment-debtors refused to vacate the property and that without police aid their eviction from the decreed property was not possible. The warrant is dated 1-10-1980 and the report of the process-server is dated 23-10-1980. On both these occasions the judgment-debtors never raised any objection that the property of which they were being dispossessed under the order of the executing Court was not the property in issue in litigation between them and decree-holders or there is any variation in the area on suit.
7. ' The executing Court without any proper inquiry about the executibility or otherwise of the decree came to the conclusion on the bald allegation of the judgment-debtors that the decree was not executable. Copies of the Jamabandis of Khasras Nos.1741 of 1903-04, 1928-29 and 1971-72 had been placed on the record by the respondents. The perusal thereof would show that Khasra No,1741 measuring 382 Kanals 2 Marlas was owned by the predecessors of the appellants. It appears that fresh settlement operations were carried out in which this Khasra number was allotted fresh numbers, as per entries of Khewat No,1 of 1971-72 and sub-divided into several parts but the ownership has remained intact. No doubt, the respondents/judgment,debtors also filed copy of Misl-i-Haqiqat 1971-72 of Khewat No,54 with regard to their ownership property in which a negligible area of the Khasra No,1741 appears to have been amalgamated with their ownership property but by no stretch of imagination, it can be held that the aforesaid negligible portion amalgamated with the other area owned by the respondents, ceased to be the ownership of the decree-holders.
8. Since most of the area comprised in Khasra No,1741 was unculturable, if a negligible portion thereof was amalgamated in the ownership area of the respondents, there is nothing unusual in it as in the settlement operations such changes do occur. However, it cannot benefit the respondents in any way and this change cannot hamper the delivery of possession of the decreed property to the appellants/decree-holders in their favour prior to the settlement operation.
9. ' Order XXI, C.P.C. Exhaustively deals with the execution of decrees and orders and rule 10 thereof provides for application to the Court which passed the decree for the execution thereof. Rule 35 deals with the execution of decree for immovable property which is being reproduced in extenso for ready reference:-- "35 Decree of Immoveable Property---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.
(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode at some convenient place, the substance of the decree.
(3) Where possession of any building or enclosure is to be delivered and the person in possession being bound by the decree does not afford free access, the Court, through its officers may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession."
10. ' Rule 97 deals with resistance or obstruction in delivery of possession by third party and Rule 98 caters for eventualities of resistance or obstruction made by the judgment-debtor himself. A dispute of somewhat similar nature came up , for consideration before this Court in case Mst.
11. Karma v. Ghulam Murtaza 1970 SCM R 253 and it was observed:-- "It is not disputed that the respondents have mentioned in the execution application the same survey numbers which were mentioned in the decree that was passed in their favour. The mere fact that the survey numbers have in the meanwhile changed on account of fresh survey cannot render the description of the property mentioned in the execution application as incorrect.
12. Moreover, sub-rule (2) of Order XXI, Rule 11, C.P.C. In a case where a decree is passed for possession does not require to' give the exact particulars of the property sought to be delivered under subsection (j), it is only to be mentioned that the assistance of the Court is required by the delivery of any property specifically decreed. The respondents, in the execution application filed by them, have complied with this requirement."
13. ' In a case of Indian jurisdiction Smt. Lalmuni Devi v. Shiv Shankar Tiwary (AIR 1960 Patna 184) it was concluded as follows:-- "Mr. Lakshman Saran Sinha, appearing for the objectors, on the other hand, contended that the executing Court had no jurisdiction to take additional evidence to find out the properties in suit. I do not find any force in this contention of Mr. Sinha inasmuch as, the executing Court is certainly entitled in law to take such steps to effect delivery of possession in terms of the decree under execution. "Such steps" would not amount to taking any additional evidence in the matter but would amount simply to ascertain and fix up the identity of the property in terms of the decree itself."
14. In view of the aforementioned dictum of this Court and that of the Patna High Court coupled with the statutory provisions of Order XXI, C.P.C. ' it is clear that the decree-holder has only to apply to the Court which passed the decree for the execution of the decree and the executing Court is duty bound to execute the decree and cannot find fault with it on mere technicalities so as to deprive the decree-holders of the fruits of the decree passed in their favour after protracted litigation. The disputed area comprising of Kothas etc. Was sufficiently described in the plaint as it was part of a definite Khasra number and there should be no difficulty in the location thereof by the executing agency on the spot. The mere fact that in the interregnum fresh settlement took place resulting in the change in the Khasra number or subdivision of the original Khasra number into several parts could not efface the decree at all. As explained above the impugned Khasra number according to the settlement record 1971-72 is recorded as ownership of the appellants. The respondents/judgment-debtors are not amongst the proprietary body and as such whatever area is found to be in their possession out of the new Khasra numbers shall be presumed to be the area decreed in favour of the appellants even if there be a little bit increase in the area which shall be presumed to be accretion to it after the passing of the decree out of Khasra No,1741 referred to above. Even in these proceedings the judgment- debtors/respondents have not specifically denied their possession over part of Khasra No,1741 represented by new Khasra number but they have simply stated that the decree is not executable because of sub-division of the suit. Khasra number. Since the judgment-debtors/respondents were parties to the prolonged litigation and the only claim agitated by them was that of prescriptive title in which they failed, it behoved them to deliver the possession of the decreed property to the decree-holders voluntarily on the spot, or at least assist the executing agency in locating the property so decreed. The executing Court ought to have issued process for delivery of possession to the decree-holders and if any dispute had arisen on the spot regarding the identity of the property he could make proper inquiry into it, locate the property through evidence or appointment of local commission a's it would have been a matter under section 47 of the Civil Procedure Code relating to execution, discharge or satisfaction of the decree exclusively within its jurisdiction and as such it has fallen into error in refusing to execute the decree and exercise proper jurisdiction vested in it. The higher forums too, have failed to consider the above-noted legal and factual aspect of the case.
15. ' Resultantly, we accept this appeal with costs throughout, set aside the judgments and orders of the lower forums and remand the case back to the executing Court for the execution of the decree in the light of the observations made above. The respondents shall pay Rs,50,000 in gross in lieu of the taxed costs, to the appellants.