This question is with regards the questions asked in the below thread https://www.kaanoon.com/457527/muslim-property-partition First i want to provide an update that the court has denied the appeal filed by my late.brother and declared thst the property belongs to all the legal heirs of my father which was there in the original judgement as well, however the brother who has filed the case has illegal possession of the commercial property and refusing to share the possession with other legal heirs. I have some specific questions that i want to check if we can do before filing the partition suit 1) Can we file a execution petition in the court so that all the legal heirs get joint possession of the property . I have read somewhere that order 21 and rule 35 and 36 Rule 97-101, Obstruction removal and takes police help gives me the right to file execution petition in the court to execute the judgement? Is that correct ? 2. Can we file a petition to get Mesne Profits (Order 20 Rule 12 CPC) till the time partition is not done for the property 3.Can sealing of property be ordered by the Court under Section 151 CPC if one party is violating another’s rights? 3) We are thinking of filing a partition suit once we get the possession? Is that the correct approach
File suit for partition fir division of property by metes and blinds
seek injunction restraining your bother legal heirs from selling the property
3) you can seek appointment of court receiver pending hearing and final disposal of suit
4) an execution petition can be filed in court to obtain joint possession of a property by all legal heirs if a decree for possession exists,
Execution Petition – Yes, you can file an execution petition under Order 21 Rules 35 & 36 CPC to enforce the judgment and obtain joint possession. Rules 97–101 allow removal of obstruction, even with police help if needed.
Mesne Profits – You may claim mesne profits under Order 20 Rule 12 CPC from the brother in illegal possession until partition is effected.
Sealing of Property – The court has inherent powers under Section 151 CPC, but sealing is rarely ordered unless absolutely necessary to protect rights or prevent misuse.
Partition Suit – Yes, after securing possession, filing a partition suit is the correct step to get your defined share.
The while dismissing your brother's case has mentioned that the other legal heirs have rights in the property.
Hence you can file a suit for partition to divide the property as per your personal law by metes and bounds and to allocate your share with separate possession.
Suit for possession without partition is not maintainable.
You can file an application for temporary injunction against your brother to restrain him from alienating the property in any manner till disposal of this suit.
I am not asking exclusive rights of my share through execution petition but asking for joint possession for all the 6 legal heirs. Currently one of the legal heir is reaping the benefit out of the commercial shop and refusing possession to other joint owners of the property or agree to share the profits he is getting from the entire shop as it is a prime property in a prime commercial area. The partition suit will run for another 10-15 years till the time i want actually the joint possession of the property. The below supreme court judgements supports my case for execution petition , kindly guide if this understanding is incorrect Sri Ram Pasricha v. Jagannath (SC, 1976): Each co-owner is owner of every inch of the joint property until partition. Md. Baqar v. Naim-un-Nisa (SC, 1956): One co-owner in exclusive possession must account for profits to others. K.K. Dewan v. District Judge (Delhi HC, 1993): Joint possession decree can be executed to obtain actual joint possession, not just symbolic, if one co-owner is excluding others 1. Yoginder Kumar Sud v. Thakur Rajiv Singh & Anr. (Punjab & Haryana High Court, 2022) The Court held that even if one co-owner is in sole possession, other joint decree-holders are entitled to be placed in joint possession along with the judgment-debtors through execution proceedings All these judgment says that execution petition for joint petition is maitainable without partition . Are there any judgments which will say that it is not maintainable?
Your understanding is correct
execution petition is maintainable
You were asking about filing execution petition to execute the decree.
Where as the suit filed by plaintiff was dismissed hence there's no decree passed by the trial court in favour of the defendants.
How can you file an execution petition if you don't have a court decree to execute the same.
The legal option before you is to get possession of your share either joint or separate possession will be decided by court in a suit for partition.
If one of the joint owners is enjoying the revenue without giving share to other shareholders then you can file an application in the same suit for share in the mesne profits till disposal of main suit and also an order of injunction against him to restrain him from stopping you from entering into the property and also from creating any encumbrance over the property.
Please note that the judgments of district courts cannot be quoted as citations.
The judgments what you refer should be understood properly that whether it is applicable to your situation or not.
Kalaiselvan Sir your assumption is incorrect, the court has declared that the commercial shop belongs to all the legal heirs of my father and they have given a decree also for the same both as part of the original judgment also while dismissing the appeal, therefore in my view execution suit is maintainable
Execution petition is maintainable
If you are under presumption that you can file an execution petition then you can proceed but to my knowledge and opinion an execution petition is maintainable to execute the decree got in favour of decree Holder, if you are the decree Holder then you can proceed to execute the court decree if not you cannot file an EP but only a suit for partition.
Yes you can seek execution as well as mesne profit in the above case
Your understanding and approach are legally sound, and the Supreme Court and High Court judgments you have cited directly support your right to seek joint possession through execution proceedings after a final decree declaring shared ownership, even before a partition suit is filed.
Since the judgment and appellate order have already declared that the property belongs to all legal heirs, you absolutely can file an execution petition to enforce joint possession. Order 21 Rule 35 CPC allows for delivery of possession of immovable property, including joint possession, to decree holders. Order 21 Rule 36 CPC supports enforcement of possession when the property involves more than one party, including removal of any obstruction. Rules 97–101 CPC address situations where obstruction or resistance is offered by any person on the property; the executing court can order removal of such obstruction and even direct police aid. Supreme Court and High Court precedents (Sri Ram Pasricha v. Jagannath; Md. Baqar v. Naim-un-Nisa; K.K. Dewan v. District Judge; Yoginder Kumar Sud v. Thakur Rajiv Singh) make it clear: a joint possession decree is executable—actual joint, not just symbolic, possession must be given. As long as the decree is for joint possession and not for partition/mutes and bounds division, execution is maintainable, and there are no authoritative judgments denying maintainability in these circumstances.
You can file an application for mesne profits (the share of income/profits from the commercial shop that you, as joint owner, have been unjustly deprived of), payable by the co-owner enjoying exclusive possession. Order 20 Rule 12 CPC provides for such a claim, and Md. Baqar v. Naim-un-Nisa (SC) supports the principle that a co-owner in exclusive possession must account to other co-owners for profits. This can be filed as part of execution or separately.
The court has inherent powers under Section 151 CPC to pass orders to protect parties’ rights and prevent injustice, including orders for sealing the property if it is proved that exclusive possession is being misused to deprive other legal heirs. Courts have ordered sealing to prevent unlawful alienation or to preserve property pending resolution.
Your approach is both practical and legally correct. First, obtain joint possession via execution; then, pursue partition by metes and bounds so each heir gets their proper share. Partition suits do take years, so joint possession ensures you can exercise your ownership rights in the interim.
You are entitled to file an execution petition for joint possession immediately. You can seek removal of obstruction and police aid if needed. You can claim mesne profits for your share of the shop’s income. The court can be requested to seal property to protect rights under Section 151 CPC. There are strong precedents for all these actions, and no notable judgments against maintainability when a decree for joint possession is clear.
If you need help drafting the execution petition or applications, I am available for further consultation and assistance to protect your rights and ensure quick enforcement.
