1. ' SARDAR SAID MUHAMMAD KHAN, CJ.--This appeal has been directed against the order of the High Court dated 27-1-1994, whereby the order of the Additional District Judge in execution proceedings was set aside.
2. ' The brief facts of the case are that a decree for possession of the land measuring 17 Kanals and 7 Marlas was passed in favour of the appellants by the trial Court which remained intact right uptil this Court. An issue in the original suit was framed as to whether any improvements over the suit land were made by the respondents-judgment-debtors and in case they were ejected, they were entitled to the compensation. A perusal of the record shows that all the Courts below decided the issue regarding compensation against the respondents/defendants. When execution proceedings started, protracted litigation started between the parties. The present dispute relates to the question as to whether possession of the site over which a house stands constructed can be delivered to the appellants-decree-holders. The learned Additional Sub-Judge opined that as the decree for possession was silent about the house and the land over which the same stands constructed, the possession of land covered by the 'house cannot be delivered to the decree- holders. On appeal to the District Judge, the learned Additional District Judge allowed a period of one month to the judgment-debtors to take away the debris of the house, failing which the possession of disputed site would be delivered to the decree-holders after demolition of the house.
3. It may be pointed out here that the possession of 17 Kanals of land has already been delivered to the decree-holders; the Patwari concerned reported to the executing Court that he was unable to deliver the possession of the house or the land beneath it because the decree was silent about the same. During the pendency of the execution proceedings, Muhammad Sarwar Shah, one of the respondents, submitted an application to the executing Court stating that he surrenders his share to the extent of 7 Marlas over which the house was constructed by the judgment-debtors; this share may be adjusted against his overall share to which he is entitled under the decree passed.
4. All the Courts below, including the High Court, have come to the conclusion that Muhammad Sarwar Shah, one of the decree-holders, could not surrender his fractional share in favour of the judgment-debtors in execution proceedings. However, the High Court expressed the view that the possession of the land beneath the house would be delivered to the decree-holders symbolically and not by delivering %has' possession till the partition of the land decreed takes place between the decree-holders. During the course of arguments, an application has also been submitted by Mst. Zaib-un-Nisa, respondent, stating that Muhammad Sarwar Shah, respondent, has already abandoned to claim the possession of the land beneath the house and she also surrenders her right to get possession of her share from the land over which the house stands constructed.
5. ' We have heard the arguments. The learned counsel for the appellants, Sardar Rafique Mahamood Khan, has contended that all the Courts below have held that Muhammad Sarwar Shah could not abandon his share at the execution stage. He has referred to Order 23, rule 4 of the Code of Civil Procedure in support of his contentions that no abandonment or compromise can be effected during the execution proceedings. He has also maintained that Sarwar Shah and Mst. Zaib-un-Nisa have connived with the judgment-debtors and have submitted the applications so as to adversely affect the interest of the other decree-holders. He has argued that decree for possession is a joint decree and shares of Sarwar Shah and Mst. Zaib-un-Nisa have not been determined in the decree-sheet; even the High Court has held that the other decree-holders can claim their interest in the land beneath the house after the partition of the land. The learned counsel submitted that on one hand the High Court has directed to deliver symbolic possession of the disputed portion of land to the decree-holders and on the other hand it expressed the view that the judgment-debtors are entitled to retain the possession till the partition between the decree holders despite the fact that the decree-holders are not co-sharers in the disputed land. He further submitted that the observations of the High Court that after the application of Sarwar Shah whereby he abandoned his interest in the land beneath the house, the judgment-debtors would step into his shoes is incorrect and against the settled principles of law on the subject. The learned counsel submitted that the Additional District Judge has rightly ordered the respondents to take away the debris of the house, if they so desire. The learned counsel has supported his contention by citing following authorities: ' In Safia Khatun v. Moulvi Mahbubar Rahman (PLD 1962 Dacca 265), it was observed that if there is a decree for `Khas' possession and there is no conflict between the interests of decree-holders and if some obstruction is put up at the instance of the judgment-debtor since 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 laid down under Order 21, Rule 35, C.P.C.
6. ' In case reported as Fazal Ahmed v. Rahmat Din (PLD 1967 Pesh. 154), the facts were that the appellant was given decree for possession of a site. There was no direction about `Chhappar' but a prayer was made by the decree-holder in the execution application to demolish the `Chhappar'. An objection was raised that application was not in order because there was no reference to `Chhappar' in decree-sheet. The objection was overruled and the application was held in order. The case was remanded to the trial Court to finalise the execution proceedings according to law.
7. ' In Ramrup Rai v. Mst. Gheodhari Kuer (AIR 1980 Patna 197), it was observed that where the defendant puts up construction dependent lite or after the passing of the decree, then the executing Court can order demolition of the structures and deliver the possession. But where the construction is put before the institution of the suit, the executing Court cannot order demolition of the structures but would simply deliver the possession of the land and the building after removal of the judgment-debtor therefrom. In either case, however, the Court before ordering delivery of possession must give time to the judgment-debtor to remove the material from the decreed land, if he so likes.
8. ' In case reported as Bans Raj Singh v. Krishna Chandra (AIR 1981 All. 280), it was held that where there is a joint decree any one of the decree-holders can execute the same for benefit of all decree-holder unless it is otherwise provided by the decree. It was observed that the joint decree is not divisible and is always executable as joint decree; the executing Court cannot go beyond the decree. A decree can be executed in part only where the shares of decree-holders are defined or can be predicated or where the share is not in dispute. Otherwise, executing Court cannot find out shares of decree-holders in execution proceedings. It was further observed that dispute between decree-holders is foreign to the scope of section 47, C.P.C. In this case one of the decree-holders had sold the share to the wife of the judgment-debtor and the judgment-debtor opposed the execution of whole decree. After reviewing the case-law, the decree was allowed to be executed as it was passed in the original litigation.
9. ' In Muhammad Ismail v. Ashiq Hussain (AIR 1970 All. 648), it was held as under:-- "7. Where the constructions were made before the institution of the suit, the rule laid down in the Rangoon case could be adopted; but where the constructions were made during the pendency of the suit, constructions made are against the law and hence shall be deemed to have been made by the judgment-debtor at his own risk and responsibility namely, that he shall not be able to claim any benefit of such constructions during the execution proceeding. When the judgment-debtor had no right to the constructions, he can raise no objection to the removal of the constructions during the execution. Where it appears to the executing Court that the costs of removal or demolition of the constructions would exceed the costs of material to be fetched after the demolition and the decree-holder is willing to let the construction stand on the land, the rule laid down in (1872) 18 W.R. 527 (Cal.) (supra) can be adopted namely, that it can be left open to the decree-holder to decide what he shall do with the constructions after he is given actual possession of the land along with the constructions standing thereon. Thereby the judgment-debtor would not be put to any additional expenses. But if costs of demolition shall not exceed the costs of the materials and the judgment-debtor is willing to release the materials in favour of the decree- holder free of charges, and the decree-holder is willing to accept the constructions, the executing Court need not direct the demolition of the constructions, the ownership of which would automatically pass to the decree-holder."
10. ' The counsel for the respondents controverted the arguments advanced by the learned counsel for the appellants and have maintained that the impugned order of the High Court does not suffer from any legal infirmity. They have argued that as the original decree is silent about the house or land beneath it, the respondents cannot be directed to demolish and take away the debris and the possession of the site beneath the house cannot be delivered to the decree-holders. They have also contended that as Sarwar Shah respondent, has abandoned his interest in the land beneath the house in favour of the judgment-debtors, the appellants were not entitled to possession of the land covered by the house or seek a direction that the respondents should take away the debris of the house. The learned counsel have submitted following authorities in support of their contentions:-- ' In case reported as Ramdas Sah v. Jagarnath Prasad (AIR 1960 Patna 179), it was held that the question whether a particular term of a compromise relates to the subject-matter of the suit is obviously a question to be answered on the frame of the particular suit. It observed that the plaintiff in partition suit claimed exclusive title to Plot No, 2240 but sought the decree for partition with regard to other properties. Thus, in view of the compromise decree, Plot No,2240 was exclusively allotted to the plaintiff. It was further observed that the title of Plot No, 2240 was taken as part of consideration for compromise entered between the parties and, thus, it was integral part of compromise decree.
11. ' In Moti Lal Banker v. Maharaj Kumar Mahmood Hasan Khan (AIR 1968 SC 1087), it was observed that in view of the provisions contained in Order 20, Rule 11, C.P.C., a direction for postponement of payment of decretal amount can be ordered. Such an agreement is not hit by Order 23, Rule 1, C.P.C.
12. ' In case reported as Ramnath Sarma v. Baidyanath Chatterjee (AIR 1954 Cal. 620), it was held that as objection regarding the adjustment of the decree under Order 21, rule 2, sub-rule (2), had been filed beyond the limitation, the same entailed for dismissal. It was held that as the decree-holder had admitted before the Court that decree had been adjusted, the Court should have held that decree-holder had satisfied the adjustment of the decree of the Court and, thus, the Court should have proceeded to record the adjustment of the decree under Order 21, rule 2, sub-rule (2), C.P.C.
13. We have given our due consideration to the arguments advanced at Bar. The first point which needs resolution is as to whether Sarwar Shah could abandon his fractional share in the disputed portion of land in favour of the judgment-debtors. Sarwar Shah made an application in the executing Court on 11-12-1991 praying that the disputed land covered by the house might be treated exclusively in his share; and that he abandoned the same in favour of the judgment- debtors. It may be pointed out that a compromise in civil proceedings can be made under Order 23, Rule 4, C.P.C. Order 23 is not applicable to the execution proceedings. Therefore, such an abandonment in execution proceedings is not permissible under law. Under Order 21, Rule 2(2), C.P.C., an adjustment of a decree can be made out in the Court. In I any such eventuality, the judgment-debtor shall have to apply to the executing Court within 90 days of the adjustment that the same may be recorded and certified. Consequently, a notice is issued to the decree-holders concerned. As no such procedure was followed in the instant case, any adjustment cannot be recognized under Order 21, sub-rule (3) of rule 2. Consequently, the application dated 11-12-1991 of Sarwar Shah, respondent, is of no avail to the case of the respondents. It may be pointed out here that even otherwise in the instant case the decree for possession was joint and shares of the decree-holders have not been ascertained. The executing Court is not legally competent to ascertain the shares of the decree-holders as has been held in case reported as Bans Raj Singh v.
14. Krishna Chandra (AIR 1981 All. 280).
15. ' There has been conflict of opinion between the judicial authorities as whether rule 2 of Order 21, C.P.C., is applicable only in cases of money decrees or it will also apply to the decrees of any kind.
16. Even if it is assumed for the sake of argument that it is also applicable to decrees other than money decrees, that would not help the case of the respondents for the reasons recorded above.
17. Same reasons hold true in case of application made during the course of arguments by Mst. Zaib- un-Nisa and, thus, the same is hereby rejected.
18. ' Now the next question which needs resolution is as to whether the appellants can be delivered possession of the site covered by the house. It may be stated that all the Courts, including this Court, have held in the original suit that the respondents have not proved that they made any improvements over the suit land. Hence no compensation was awarded. It was not proved in the original suit that when the house was constructed, i,e, before the institution of the suit or afterwards.
19. In any case, as has been held in cases relied upon by the learned counsel for the appellants, reported as Ramrup Rai v. Mst. Gheodhari Kuer (AIR 1980 Patna 197) and Muhammad Ismail v. Ashiq Hussain (AIR 1970 All. 648), whether the construction of the house was made before or after the institution of the suit, the appellants are entitled to get the possession of the site covered by the house. Thus, the Additional District Judge rightly gave one month's period to the respondents to take away debris of the house, failing which the house shall be demolished and the possession would be delivered to the decree-holders.
20. ' Consequently, disagreeing with the view taken by the High Court that till the partition takes place between the decree-holders, the judgment-debtors shall not be dispossessed from the land over which the house has been constructed, we set aside the impugned order of the High Court and restore that of the Additional District Judge in totality. Consequently, the executing Court shall proceed with the execution proceedings in light of the order passed by the Additional District Judge on 13-6-1993. In view of the circumstances of the case; we make no order as to the costs.