D.S. Mathur, J.
1. This is an Execution Second Appeal by Mohammad Ismail, decree-holder, against the order of the Civil Judge of Eoorkee at Saharanpur, allowing the appeal of Ashiq Husain (since dead), judgment-debtor, and holding that in the execution of a decree for possession, possession could not be delivered after removal of the constructions.
2. The learned Civil Judge placed reliance upon the case of Kauk Sike v. Ong Hock Sein, AIR 1927 Rang 82 but failed to realise the importance of this decision and also what order was eventually passed, otherwise he would have known that this decision was more damaging to the judgment-debtor as thereby the building would go under the control and possession of the decree-holder if not removed before the delivery of possession and thereby the judgment-debtor would be put to a great loss. If the materials of the constructions are removed by the judgment-debtor, he would be in a position to use them in constructing another house or he would be in a position to make some money by their sale. But if it is for the decree-holder to consider after he has obtained possession whether the constructions be removed or not, the judgment-debtorcannot take advantage of the materials of the constructions.
3. The facts of the instant case, in brief, are that at the time of the institution of the suit no constructions stood on the land in dispute. The judgment-debtor had merely dug the foundations. This is why only reliefs for possession and permanent injunction were sought for and there was no prayer for the removal or demolition of the constructions. The judgment-debtor had however, completed the ground floor before the matter of temporary injunction could be finally decided.
4. After the constructions were made by the judgment-debtor, the plaintiff did not apply for amendment of the plaint and hence he was simply granted a decree for possession and injunction. When this decree was put into execution, the judgment-debtor raised an objection that the removal or demolition of the constructions could not be ordered by the executing court. The objection was repelled by the executing court but in appeal the learned Civil Judge allowed the objection holding that in execution of the decree for possession, there could be no removal of the constructions.
5. On the application of the rule of equity no party can be permitted to take advantage of the wrongful acts committed during the pendency of a suit. The same principle can be inferred from the provisions of Section 52 of the Transfer of Property Act which clearly provides that during the pendency in any Court having authority of a suit or proceeding in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. The words 'otherwise dealt with' are general and can also include the raising of constructions wrongfully. When the defendant could not, in any manner deal with the immovable property in dispute in the suit, he cannot to the disadvantage of the plaintiff decree-holder, claim any advantage out of the constructions wrongfully made.
6. If it were necessary for the plaintiff to always institute a new suit with regard to any wrongful act done during the pendency of the suit, the litigation would never come to an end and it shall be open to the defendant to cause an irreparable injury to the plaintiff. In the circumstances, I see no difficulty in the executing court ordering the removal or demolition of the constructions made during the pendency of the suit, during the execution of a decree' for possession. A similar view was expressed in Narain Singh v. Imam Din, AIR 1934 Lah 978. The decision in Radha Gobind Shaha v. Brijendra Coomar Roy Chowdhri, (1872) 18 WR 527(Cal) was followed by Duckworth, J., in AIR 1927 Rang 82 (supra) and the order passed in the Second Appeal was as below:--
'I modify the order of the lower court by directing that the appellant do vacate the building on the land as soon as this order is communicated to him and that he be granted two months from this date within which, if he so pleases, he may dismantle the building and remove its material.'
In (1872) 18 WR 527 (Cal) (supra) demolition of the constructions made before the institution of the suit, was not ordered but it was said that was a matter for the decree-holder to consider after he had obtained possession. At the same time the judgment-debtor was allowed two months' time within which he could, if he so desired, vacate the land and carry away the materials of the building.
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 WR 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 which would automatically pass to the decree-holder.
8. The Second Appeal is hereby allowed with costs of all the courts and the decree and order of the learned Civil Judge in appeal are set aside. It is further ordered that the objection of the judgment-debtor to demolition of the constructions shall stand dismissed. The judgment-debtor is given three months from today to vacate the land after removal of the materials of the constructions.No further time shall be granted to him for the purpose. In case of default, possession of the land shall be delivered to the decree-holder after dispossession of the judgment-debtor from both the land and the constructions standing thereon and thereafter it shall be for the decree-holder to decide how to deal with the constructions.