Civil Revision No.5253 of 2007 1 In the High Court of Punjab and Haryana at Chandigarh Civil Revision No.5253 of 2007 Date of decision: 7.7. 2009 Kumari Sandeep and another ......petitioners Versus Mohinder Singh and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Narinder Hooda, Advocate. for the petitioners. Mr.R.S.Malik, Advocate, for the respondents. **** SABINA, J. This revision petition is directed against the order of the Executing Court dated 29.9.2007, whereby, the objection petition filed by the petitioners-judgment debtors was rejected and warrant of possession was issued in favour of the decree holder. The facts of the case, in brief, are that Mohinder Singh- plaintiff had filed a suit for possession by way of specific performance with regard to the agricultural land measuring 23 kanals 17 marlas i.e. 1/3rd share of 71 kanals 12 marlas comprised in Rect. and Killa Nos:- Civil Revision No.5253 of 2007 2 3 4 ----------------, -----------------------------------------------------------------------------------------, 23, 24/1 3, 4/1, 7/1, 7/2, 8/1/1, 8/1/2, 8/2, 14 7-12 4-18 7-12 5-18 2-0 5-0 1-0 1-0 5-10 7-4 6 5 6 --------------------------------------------, -----------------, -----------, 17, 26 g.m. Well, 20 16 8-0 0-4 7-12 8-0 situated in village Thana Khurd as per agreement to sell dated 25.1.1988. Vide judgment and decree dated 7.10.1996, the suit of the plaintiff was decreed. The plaintiff initiated execution proceedings and filed proposed sale deed. Judgment debtors/petitioners filed objection petition. As per the objection petition, it was averred that present execution was covered under Order 21 Rule 35 (2) of the Code of Civil Procedure ('CPC' for short) and hence, no warrant of delivery of actual physical possession could be issued. Only symbolic possession could be delivered to the decree holder. Vide the impugned order, the objection petition filed by the petitioners- judgment debtors was dismissed on the ground that in a suit for specific performance of agreement to sell, actual physical possession was liable to be delivered. Hence, the present revision petition. After hearing learned counsel for the parties, I am of the opinion that the present revision petition deserves to be allowed. Order 21 Rule 35 (1) and (2) CPC reads as under:- “1. Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the Civil Revision No.5253 of 2007 3 party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. 2. Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree.” Plaintiff had filed a suit for possession by way of specific performance of agreement to sell dated 25.1.1988. As per the agreement to sell, defendants had agreed to sell 1/3rd share out of 71 kanals 12 marlas of land. Since the specific performance of agreement to sell was sought with regard to 1/3rd share in the total land measuring 71 kanals 12 marlas, provisions of Order 21 Rule 35 (2) CPC would apply to the facts of the present case. Although decree was sought for possession by way of specific performance but since vide agreement to sell dated 25.1.1988, 1/3rd share out of the total land was sought to be sold, the plaintiff would get joint possession of the suit property. Learned counsel for the respondents has failed to point out that vide agreement to sell in question, specific khasra numbers were sold to the plaintiff rather from the decree sheet dated 7.10.1996 (Annexure P-1) placed on Civil Revision No.5253 of 2007 4 record, it is evident that only 1/3rd share out of the total land was agreed to be sold. In these circumstances, keeping in view the provisions of Order 21 Rule 35 (2) CPC reproduced above, it is clear that where a decree was for a joint possession for immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclamation by the beat of drum or other customary mode at some convenient place, the substance of the decree. It has been held by this Court in Khashmir Singh v. Tana and others 2000(4) RCR (Civil) 6, that where decree is for joint possession then procedure for execution of a decree for joint possession is under Order 21 Rule 35 (2) CPC and not under Order 21 Rule 35 (1) CPC. In these circumstances, the learned Executing Court has erred in issuing warrant of possession by proceeding under Order 21 Rule 35 (1)CPC. Accordingly, this revision petition is allowed. The impugned order is set aside and it is held that the warrants of actual possession could not be issued in execution of decree in question. (SABINA) JUDGE July 07 , 2009 anita