P L D 1962 Dacca 265 (PLP)

3. It appears that since the application for execution was filed on 20‑6‑57 by the decree‑holder No. I and co‑decree‑holders Nos. 2 to 10 through one lawyer, some changed circumstances were brought about at the instance of the parties and it also appears that at several stages it was pointed out by co‑decree holders Nos. 2 to 10 that they had transferred their interest in the disputed property to the extent of 21 decimal of land in favour of one Abdul Fazal and also that the remaining 3 decimal of land that was due in their share had been in the possession and enjoyment of judgment‑debtor No. 9, the present appellant. As late as 4‑8‑52 these co‑decree‑holders by an application stated before the Court that their claim in regard to the suit land had been satisfied in view of the fact that the judgment‑debtor No. 9 was allowed by them to continue in the enjoyment of that much property. It also appears on a reference to the report that due to this kind of alien attitude on the part of the co‑decree‑holders Nos. 2 to 10 decree‑holder No. 1 made a prayer to the Court for relegating them to the position of the opposite‑parties. In fact it appears that these co‑decree‑holders Nos. 2 to 10 broke away from the original group and through a separate lawyer submitted to the Court that they were no longer interested in the prosecution of the execution case. The transfer in favour of Abdul Fazal was recognised as it was based on the strength of a registered document. The story of relinquishment of 3 decimal of land in favour of the present appellant who was defendant No. 9 and who was found to be a trespasser was however turned down and a prayer for adjustment as made on her behalf was rejected. In this context of things judgment‑debtor No. 9 brought an applica tion under section 47 of the Code of Civil Procedure challenging the maintainability of the execution case against her and also question ing the propriety of the procedure to be followed for the purpose of executing the decree itself. By an order dated 23‑11‑57 it appears that the learned Munsif recognised the assignment in favour of Abdul Fazal and allowed him to have the liberty to proceed with the execution case as co‑sharer decree‑holder. In view of the predicament in which the parties were placed by reason of defection in the group of the original decree‑holders at the instance of co‑decree‑holders Nos. 2 to 10 and in view of the possible contingency that Abdul Fazal who was the son of defendant No. 9 might not take much interest in the matter, it seems the learned Munsif found and recorded the following order: "In case the decree‑holders or Abdul Fazal fails to proceed with the execution the decree‑holder No. 1 shall be entitled to get khas possession to the extent of his share by removing the pucca structures of the judgment‑debtors." Since the order dated 23‑11‑57 was passed there have been many other orders passed at the instance of the parties but the position seems to have continued as before, that Is to say, decree- holder No. 1 wanted to execute the decree alone without reference to and independent of co‑decree ‑holders Nos. 2 to 10 whose prayer for recording a satisfaction in reference to defendant No. 9 however stood rejected. The plaintiff's prayer for relegating the decree‑holders Nos. 2 to 10 to the position of opposite‑parties as also defendant No: 9's prayer for recording adjustment with respect to 31 decimal of land said to have been acquired from co‑decree‑holders Nos. 2 to 10 however stood rejected: While the matter stood in the position, an application under section 47 of the Code of Civil Procedure was filed on behalf of the judgment- debtor No: 9 challenging the maintainability of the execution case as sought to be proceeded with by decree‑holder No. 1 alone and asking for a proper direction in regard to the mode of execution, if at all the decree‑holder No: 1 succeeded on the point of maintainability of the same. As stated above both the Courts below found in favour of the decree‑holder No: 1 holding that in view of the fact of non‑recording of the alleged adjustment between defendant No. 9 and co‑decree‑holders Nos. 2 to 10 decree‑holder No. 1 was entitled to get actual khas possession by removing and evicting defendant No.

9. It is against this decision that this appeal has been preferred try defendant No. 1 judgment- debtor.

4. Mr. Abdus Salam, the learned Advocate for the appellant contends before me that in view of the fact that co‑decree- holders Nos. 2 to 10 are no longer joining in the prayer for execution of the decree as made in the application filed on 26‑6‑1957 the application for execution cannot be maintained at the instance of decree‑holder No. 1 alone. His second contention is that at any rate the execution cannot proceed in the manner indicated in Order XXI, rule 353 clause 1, Civil Procedure Code, but if It at all can proceed it should proceed under Order XXI, rule 35, clause 2, Civil Procedure Code. In other words his contention is that decree‑holder No. 1 cannot in such event get actual khas possession by turning out the defendant No. 9 but he can get only symbolical possession of the property con cerned.

5. Mr. Fazlul Karim, the learned Advocate for the contest ing respondent, however, contends that defendant No. 9 who has been found to be a trespasser and whose prayer for adjust ment has not been allowed, has no locus standi to maintain an application under section 47, Civil Procedure Code in the circums tances of the case and as such this appeal must fail.

6. In view of the circumstances set out above, the only question that comes up for consideration is as to whether the appellant had any locus standi to resist the application for execution as presented and as sought to be prosecuted subsequently even when co‑decree‑holders Los. 2 to 10 have withdrawn from the scene and if the application for execution could be proceeded with in such changed circumstances what should be the mode or manner of execution.

7. It is undoubtedly clear that defendant No. 9 had no locus standi on 26.6‑57 to resist the application for execution as presented on that date by decree‑holder Nos. 1 to 10 who jointly started the execution proceeding making defendants Nos. 11 to 14 the remaining co‑sharers parties to the same. There could have been no question as to its maintainability or the eventual adoption of the procedure under Order XXI, rule 35, clause (!) of the Code, it the position of Vie parties or relationship between all the co- sharers interested in the property remained in the same position as on 26‑6‑57. but as indicated above the circumstances changed and this gave rise to the question as to whether defendant No. 9 could still be regarded as an alien trespasser in the eye of law liable to be removed and evicted at all cost. The decree‑holders Nos. 2 to 10 and defendant No. 9 seem to agree in the assertion that whatever interest the decree‑holders Nos. 2 to 10 had in subject‑matter of the suit or in the decretal property had been transferred to the extent of undivided 21 decimal of land in favour of Abdul Fazal and had been relinquished in favour of defen dant No. 9 mother of Abdul Fazal who had already been in possession thereof to the extent of 3 decimal of land. In view of this kind of changed circumstances and in view of the further assertion by co‑decree‑holders Nos. 2 to 10 as made in their application dated 19‑7‑58 and 4‑8‑58 that they have no longer any interest in the decretal properties, it is a duty of the Court to take notice of a probable contigency that there might be difficulties in the matter of execution and giving delivery of actual physical possession to the co‑sharers decree‑holders Nos. 2, to IV, having practically gone out of the picture and decree‑holder No. 1 being not entitled to claim more than what he has in his share, that is, undivided 6 annas and odd share and interest in th;, disputed property, and defendants Nos. 2 to 14 being passive observers in the entire game, it must be understood that even if the decree -holder No. 1 could be regarded as a person entitled to levy or proceed with the execution for the benefit of defendants Nos. 11 to 14 he could not surely be regarded as a person entitled to proceed with the execution also on behalf of co‑decree‑holders Nos. 2 to 10 in the face of their loud protest or assertion as indicated above. This change of circumstances gives an indication that defendant No. 9 has practically been taken by co‑decree -holders Nos. 2 to 10 under their shelter and cover. In this way although defends: No. 9 had originally no better status than that of a trespasser yet she can be said to have acquired some locus standi to bring it to the notice of the Court that in view of such changed circumstances and position of the parties it was desirable in the interest of parties and for ends of justice that the execution should proceed according to law which cannot be found except under clause (2) of Order XXI, rule 35 of the Code. In my view, the Courts below: ought to have considered this aspect; of the question resulting from the changed circumstances of the whole affair. It is the duty of the executing Court to indicate the precise manner or procedure of execution as provided in Order XXI, rule 35 of the Code. As already observed the changed' circumstances cannot be lost sight of and the complicated questions of fact and law that have been introduced since the passing of the decree require that they should be closely investigated and adjudicated upon in appropriate proceeding which cannot be adequately or effectively disposed of in this execution proceeding in view of the previous orders passed by the Court and not set aside by any higher or other competent Court.

8. Considering the language as employed in clause (1) and clause (2) of Order XXI, rule 35 of the Code, it seems clear that when there are no anomalous circumstances which might stand in the way of giving delivery of actual possession of an immovable property in pursuance of a decree for khas possession, khas possession can and should be given according to the terms of the decree. It also deems clear that if there is no conflicting interest as between the holders of the decree and some obstruction is put up at the instance of the judgment‑debtor since the 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 or procedure as indicated in clause (1) of Order XXI, rule 35 of the Code. But in a case where it is difficult to hold that there is complete agreement as between the co‑sharer decree- holders concerned and there is a likelihood of obstruction or resistance arising as a consequence of any disagreement between the interested decree‑holders, it is safe for the executing Court to follow the procedure as laid down in clause (2) of Order XXI, rule 35 of the Code so that while the judgment‑debtor concerned might be regarded as bound by such execution and symbolical possession might be deemed to be actual possession in the eye of law so far the judgment‑debtor himself was concerned, yet for all practical purposes of peaceful enjoyment and possession the parties would be required to have adequate reliefs from a com petent Court either in the form of partition or otherwise. It is difficult to conceive that a Court should knowingly be a party to a matter, which might lead to unnecessary hostile acts.

9. In this particular case it seems quite clear that the decree- holder No: 1 being entitled to 6 annas II gondas and I kara share of the property in a suit and co‑decree‑holders Nos. 2 to 10 being entitled to 4 annas undivided share in same property it will be difficult for the decree‑holder No. 1 to have peaceful enjoyment of the property without proper demarcation within defined bound aries as on partition. It is true that to the extent of his share the person ,or persons in possession of the property in suit since found to be trespasser by the decreeing Court must be regarded as trespassers. It may be equally true conceding that decree -holder No. I might be entitled to act and proceed in the matter of the execution for the benefit of pro forma defendants Nos. l I to 14, that the judgment‑debtor who have been found as trespassers might also be regarded as such. It may thus be clear that at the most to the extent of 12 annas undivided share defendant No. 9 might be regarded 'as a trespasser but it is not Blear as to whether defendant No. 9 can be treated as such to the entire extent in view of the fact that co‑decree‑holders Nos. 2 to 10 and defendant No. 9 appear to have made up their differences and the interest that was left after the transfer of co‑decree‑holders Nos. 2 to 10 in favour of Abdul Fazal is now allowed by them to be claimed by defendant No.

9. This position has to be clearly ascertained in a regular proceeding and it is not possible to give relief to any party on that account in this proceeding, which has been started on the basis of the execution application and which is now sought to be proceeded with at the instance of the decree- holder No. 1 alone. In such circumstances I should think it safe for the ends of justice and in the interest of the parties to allow the application for execution to proceed in the manner as laid down in clause (2) of Order XX1, rule‑ 35 of the Code. After symbolical possession is given in that it will be for the parties to have their claims and right of actual physical khas possession and peaceful enjoyment further determined according to law.

10. The result, therefore, is that this appeal is allowed, the judgment and order as passed by the Courts below are modified to this extent that the application for execution will 'be liable to be proceeded with at the instance of decree‑holder No. 1 in accordance with the procedure as laid down in clause (1) of Order XXI, rule 35 of the Code, after necessary amendment in the prayer portion as formulated in the said execution application. In case the decree‑holder No. 1 fails to ask for an amendment as indicated above within such time as the executing Court thinks proper and reasonable, the application for execution will stand dismissed: In view of the facts and circumstances of the case I direct that each party will bear b is or her own costs throughout up to this stage. S. B. Order accordingly.