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Issues: (i) whether the executing court could direct demolition of constructions raised pendente lite while enforcing a decree for possession; (ii) whether tenants inducted by the judgment-debtor without leave of court were bound by the decree and could be removed in execution without being separately impleaded.
Issue (i): Whether the executing court could direct demolition of constructions raised pendente lite while enforcing a decree for possession.
Analysis: Order 21, Rule 101 of the Code of Civil Procedure requires the executing court to decide all questions relating to right, title or interest arising in execution proceedings. Order 21, Rule 35(3) also empowers the court to take all necessary incidental or ancillary steps for effective delivery of possession. A decree for possession cannot be rendered nugatory by an unlawful structure raised during the pendency of the suit without permission of the court. In such a situation, removal of the obstruction is consequential to the decree for possession and does not require a separate suit for mandatory injunction.
Conclusion: The executing court was competent to order demolition of the shops and to enforce vacant possession.
Issue (ii): Whether tenants inducted by the judgment-debtor without leave of court were bound by the decree and could be removed in execution without being separately impleaded.
Analysis: Persons claiming through the judgment-debtor are bound by the decree where their possession stems from the judgment-debtor's act after the suit was filed and without leave of court. In such circumstances, their presence as separate parties is not a prerequisite to execution, and the bailiff may remove the obstruction and deliver possession to the decree-holder. The decree-holder is not required to undergo a fresh round of litigation merely because occupation was created pendente lite.
Conclusion: The tenants were bound by the decree and their obstruction could be removed in execution without separate impleadment.
Final Conclusion: The decree for possession was held executable in full, including removal of post-suit constructions and occupants put in by the judgment-debtor, and no illegality was found in the execution orders.
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