MATHUR, J. :- This is an Execution Second Appeal by Mohammad Ismail, decree-holder, against the order of the Civil Judge of Roorkee at Saharanpur, allowing the appeal of Ashiq Husain (since dead), judgment-debtor, and holding that in the execution of a decree for possession, possession could not be delivered after removal of the constructions.

2. The learned Civil Judge placed reliance upon the case of Kauk Sike v. Ong Hock Sein, AIR 1927 Rang 82 but failed to realise the importance of this decision and also what order was eventually passed, otherwise he would have known that this decision was more damaging to the judgment-debtor as thereby the building would go under the control and possession of the decree-holder if not removed before the delivery of possession and thereby the judgment-debtor would be put to a great loss. If the materials of the constructions are removed by the judgment-debtor, he would be in a position to use them in constructing another house or he would be in a position to make some money by their sale. But if it is for the decree-holder to consider after he has obtained possession whether the constructions be removed or not, the judgment-debtor cannot take advantage of the materials of the constructions.

3. The facts of the instant case, in brief, are that at the time of the institution of the suit no constructions stood on the land in dispute. The judgment-debtor had merely dug the foundations. This is why only reliefs for possession and permanent injunction were sought for and there was no prayer for the removal or demolition of the constructions. The judgment-debtor had however, completed the ground floor before the matter of temporary injunction could be finally decided.

4. After the constructions were made by the judgment-debtor, the plaintiff did not apply for amendment of the plaint and hence he was simply granted a decree for possession and injunction. When this decree was put into execution, the judgment-debtor raised an objection that the removal or demolition of the constructions could not be ordered by the executing court. The objection was repelled by the executing court but in appeal the learned Civil Judge allowed the objection holding that in execution of the decree for possession, there could be no removal of the constructions.

5. On the application of the rule of equity no party can be permitted to take advantage of the wrongful acts committed during the pendency of a suit. The same principle can be inferred from the provisions of Sec. 52 of the Transfer of Property Act which clearly provides that during the pendency in any Court having authority of a suit or proceeding in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. The words "otherwise dealt with" are general and can also include the raising of constructions wrongfully. When the defendant could not, in any manner deal with the immovable property in dispute in the suit, he cannot to the disadvantage of the plaintiff decree-holder, claim any advantage out of the constructions wrongfully made.

6. If it were necessary for the plaintiff to always institute a new suit with regard to any wrongful act done during the pendency of the suit, the litigation would never come to an end and it shall be open to the defendant to cause an irreparable injury to the plaintiff. In the circumstances, I see no difficulty in the executing court ordering the removal or demolition of the constructions made during the pendency of the suit, during the execution of a decree for possession. A similar view was expressed in Narain Singh v. Imam Din, AIR 1934 Lah 978. The decision in Radha Gobind Shaha v. Brijendra Coomar Roy Chowdhri, (1872) 18 WR 52