Under provisions of Order XXI Rule 35(3) of the Code it is open for the judgment-debtor to remove or take away or do any other act so as to put the decree-holder in possession. The decree in question is one for possession. It is well settled that while executing a decree for possession the executing Court is entitled to pass such incidental, ancillary or necessary orders for effective enforcement of the decree for possession. A direction to judgment-debtor to remove the structure standing on the portion of the land of which possession is to be delivered to the decree-holder would naturally be an incidental direction. The decisions relied upon by the learned counsel for the decree-holder support his contention in that regard. Moreover, provisions of Section 52 of the Transfer of Property Act, 1882 also permit such course to be followed.
8. It is thus clear that the executing Court acted within its jurisdiction in granting time of fifteen days to the judgment-debtor to demolish the existing structure and to take away any valuable material.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Writ Petition No. 1210 of 2018
Decided On: 17.04.2018
Mahadeo Vs. Anandrao
Hon'ble Judges/Coram:
A.S. Chandurkar, J.
Citation: 2018(5) MHLJ 727.
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