Execution proceedings

Question as to whether possession of the site over which a house stands constructed can be delivered to the appellants/decree-holders — The executing Court opined that the decree was silent about the house and the land over which the same stands constructed, possession of land covered by the house cannot be delivered– On appeal to the Additional Distt. 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 was to be delivered after demolition of the house — High Court held that the possession of the land beneath the house would be delivered to the decree-holders symbolically and not by delivering ‘Khas’ possession till the partition of land. Pir Muhammad Yunus Shah v. Muhammad Yunus & others 1995 SCR 296 (A)
O. XXI, R.2(2) & O.XXIII R. 4 — Compromise and its effect in execution proceedings — One of the decree-holders abandened his fractional share in the disputed portion of land in favour of the judgment-debtors — A compromise in civil proceedings can be made under order 23 rule 4 — But order 23 is not applicable to the execution proceedings — Held: Such an abandonment in execution proceedings is not permissible under law — Under Order 21, rule 2(2) an adjustment of decree can be made out in the Court — In which eventuality the judgment-debtor shall have to apply to the executing Court within 90 days of the adjustment for recording and certification of the same — As no such procedure was followed any adjustment cannot be recognized under Order 21 sub rule (3) of rule 2. The partition of land. Pir M. Yunus Shah v. M. Yunus & others 1995 SCR 296 (B)