directed to vacate the possession and remove the locks on the portion highlighted in red color in the site plan in the suit property by appointing a bailiff. The bailiff be directed to go to the spot and take physical possession of the part of the property bearing No G-6, Maharani Bagh, EFA(OS) 21/2019 Page 5 of 7 New Delhi as shown in red colour in the site plan and deliver the same to the Decree Holder/Petitioner.
ii. That the Bailiff be further directed to also remove the belongings of the Judgment Debtor/Respondent lying in the said premises kept locked by the Judgment Debtor/Respondent and to deliver the Decree Holder/Petitioner vacant physical possession of the part of the property bearing No G-6, Maharani Bagh, New Delhi as shown in red colour in the site plan.
iii. It is also prayed that this Hon'ble Court may please be gracious enough to provide the Police aid as the Decree Holder/Petition has all the apprehension that the Judgment Debtor/Respondent shall put all kinds of resistance and obstruction in execution of the said order. Therefore, this Hon'ble Court may direct Dy. Commissioner and/or SHO, Maharani Bagh, New Delhi, to assist the bailiff in getting the physical possession of the part of the property bearing No G-6, Maharani Bagh, New Delhi as shown in red colour in the site plan.
5. The submission of learned counsel for the appellant is that the learned Single Judge, while passing the impugned order holding the execution petition to be not maintainable and misconceived, ignored Section 36 of the Code of Civil Procedure which provides that the provisions of the Code relating to the execution of decree (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment an order).
6. Mr. Vashisht has also referred to a decision of a Division Bench of this Court in Rohit Shekhar Vs. Narayan Dutt Tiwari & Another, ILR (2012) 5 Delhi 181, in support of his submission that an execution would lie even in respect of an order passed under Order XXXIX Rules 1 & 2 CPC. EFA(OS) 21/2019 Page 6 of 7
7. We find force in this submission of Mr. Vashisht. In our view, the learned Single Judge has acted in ignorance of Section 36 CPC while passing the impugned order, as well as of the aforesaid decision. Interestingly, it is pointed out that the learned Single Judge who passed the impugned order, was party to the said decision of the Division Bench. It appears that the said decision escaped the attention of the learned Single Judge while passing the impugned order. The impugned order passed by the learned Single Judge in Execution Petition No.46/2018 is, therefore, set aside and we hold that the said Execution Petition was maintainable. The Execution Petition is restored for consideration by the learned Single Judge on its merits.
8. On the aspect of what interim arrangement shout operate in the meantime, i.e. till the consideration of the Execution Petition, Mr. Gupta, on instructions from Mr. Ankur Mahindro, who in turn, has taken instructions from the respondent, without prejudice to the rights & contentions of the respondent, states that the respondent is agreeable that the appellant may occupy and use the portion of the property, of which the respondents vendor purported to deliver exclusive possession to the respondent. The said portion is delineated in red colour in the plan Annexure A-11at page
182 of the record.
9. Accordingly, the appellant may use and occupy the portion demarcated in Red colour in the plan (Annexure A-11) without prejudice to the rights & contentions of the parties.
10. The respondent is permitted to remove its belongings from the said EFA(OS) 21/2019 Page 7 of 7 portion within one week, so that the portion may be used and occupied by the appellant, as aforesaid.
11. The learned Single Judge will hear and decide all the pending applications and the execution petition, which is restored on the file of the learned Single Judge. Mr. Vashisht states that no adjournment would be sought before the learned Single Judge in the pending applications/ suit.
12. The appeal stands disposed of in the aforesaid terms. VIPIN SANGHI, J REKHA PALLI, J JANUARY 12, 2021 B.S. Rohella