No decree for removal of superstructure - Executing Court is empowered to order removal or demolition of superstructure and delivery of Possession

Citation

2010 (1) MWN (Civil) 227 (Mad)

IN THE HIGH COURT OF MADRAS

M. Venugopal, J.

CR.P (NPD) No.924 of 2009.

December 30, 2009

Kandasamy Thirukoil, Thiruporur, Rep. by Its, Executive Officer......Petitioner

Vs

M. Selvaraj...   ...Respondent

(A) Code of Civil Procedure, 1908 (5 of 1908), Order 21, Rule 35(3) LAW OF EXECUTION Powers of Executing Court Execution for recovery of possession ordered - No decree for removal of superstructure No Application also by decree holder for removal of superstructure Executing Court is empowered to order removal or demolition of superstructure Power is incidental and ancillary to power of delivery of possession Decree holder directed to make Application for appointment of Advocate Commissioner before Executing Court to deliver property after removal of superstructure and Executing Court directed to pass orders after hearing the judgment debtor also. [Para 14]

(B) Code of Civil Procedure, 1908 (5 of 1908), Section 47 Section presupposes existence of a decree capable of execution - Whether a decree is executable is also within amb