Bachan Singh and others vs Inder Singh and another

Harbans Lal, J.—This revision petition is directed against the order of the Subordinate Judge, First Class, Moga, dated November 13 1978, whereby the objections filed by the judgment-debtors-Petitioners. In execution of the decree were disallowed.

Inder Singh, decree-holder, Respondent obtained a decree for joint possession to the extent of one half share in the agricultural land from the Court of the Subordinate Judge, First Class, Moga, on January 28, 1978, against the judgment-debtors Petitioners and judgment-debtor Respondent No. 3. Efforts by the judgment debtors to challenge the said decree in appeal before the District Judge and thereafter before the High Court did rot prove successful. He even made a futile attempt to challenge the said decision by means of a SLP in the Supreme Court. In spite of that, he did not rest contented and challenged the said decree by means of a suit on the ground of fraud, but there also, he did not succeed in any forum. His appeal in the High Court was dismissed in limine on May 24, 1978.

The decree-holde Respondent, filed an execution application wherein symbolical possession of one-half of the suit land as envisaged under order 21 Rule 35 (2), Code of Civil Procedure, (hereinafter called the Code), was delivered on September 7, 1971. Subsequently, another execution application for delivery of the actual possession was filed, but the same was dismissed. The decree related to one-half of the suit land and the remaining one half land belonged to one Gahia Singh. After his death, his estate was inherited by Inder Singh, decree holder-Respondent, and the mutation relating to the same was also sanctioned in favour of the decree holder-Respondent. Obviously, after the said mutation of inheritance, the decree holder Respondent became the owner of the entire suit land, i.e., to the extent of one-half by means of the decree and the other half as a result of the inheritence after the death of Gahia Singh. It was as a result of the development that the decree holder Respondent filed the execution application out of which this revision petition has arisen to get the actual physical possession of one-half of the land for which the decree had been passed in his favour. The judgment-debtors Petitioners, in their objection petition, took a number of objections, that due notice before the warrant of possession was not issued, the decision in the previous application will operate as res judicata and that the execution application was not maintainable. All the contentions were repelled and the impugned order was passed.

The learned Counsel for the Petitioners, has challenged the impugned order only on one ground, namely, that once the symbolic possession as envisaged under Order 21 Rule 35(2) of the Code had been obtained by the decree-holder-Respondent on September 7, 1971, the decree was completely satisfied and thereafter, no subsequent application for execution was maintainable as no part of the decree remained to be executed. According to the findings of the trial Court, the decree holder Respondent after the death of Gahia Singh became the exclusive owner of the entire land and as such, became entitled to the actual physical possession of even one half of the land regarding which the decree had been passed in his favour and, therefore, the present execution application for delivery of actual physical possesion was maintainable.

In AIR 1928 719 (Lahore) , it was held that the giving of joint possession under Order 21 Rule 35(2) of the Code, to the decree-holder was though a symbolic possesion but thereafter adverse possession could not be claimed against the decree-holder.

In Jaimal Singh v. Rakha Singh 1956 758 P.L.R 591, it was held that where a decree-holder, entitled to actual possession is satisfied with the delivery of symbolical possession as the crops were standing on the land and felt satisfied with the possession as such, thereafter, the judgment-debtor is to be regarded as being in the position of a trespasser from the date or the delivery of symbolical possession.

In Shew Bux Mohata and Others Vs. Bengal Breweries Ltd. and Others, It was held,-

Under Order 2l Rule 35, a person in possession and bound by the decree has to be removed only if necessary, that is to say if necessary to give the decree-holder the possession he is entitled to and asks for. But it is open to the decree holder to accept delivery of possession under that rule without actual removal of the person in possession. If he does that, then he cannot later say that he has not been given that possession to which he was entitled under the law. Where the decree-holders of their own accepted delivery of possession with Defendant remaining on the premises with their permission, and they granted a receipt acknowledging full delivery of possession, and permitted the execution case to be dismissed on the basis that full possession had been delivered to them by Defendant, they are bound to the position that the decree has been fully executed and the decree cannot be executed any more.

Where a decree is for the delivery of any immovable property, the same can be executed as provided under Order 21 Rule 35 or Rule 35 of the Code. Under sub rule (1) of Rule 35, actual physical possession can be delivered to the decree holder or to any person appointed by him in this behalf by giving actual possesion and if necessary by removing any person bound by the decree who refuses to vacate the property. Under sub rule (2), if the decree is for joint possession of immovable property, possession is to be delivered by affixing a copy of the warrant of possesion in some conspicuous place on the property as well as by proclamation of the substance of the decree by beat of drum. In case the property it in possession of a tenant, the decree can be executed in terms of Rule 36. There is no other mode of executing the decree for the delivery of immovable property. In the present case, there can be no dispute that the decree was for joint possession of one half of the suit land and as such, the execution of such a decree could be as provided under sub rule (2) of Rule 35 of Order 21 of the Code, that is, by taking symbolical possession by affixing of a copy of the warrant of possession on some prominent place on the property and also by proclamation of the substance of the decree by beat of drum. The decree was executed on September 7, 1971, by adopting this mode and thereafter the record of the execution application was sent to the record room. Consequently, the execution proceedings came to an end after the delivery of the symbolical possession. The mere fact that subsequent thereto the decree holder Respondent also inherited the remaining one half of the suit land and that became the exclusive owner of the entire property, cannot be utilised to be open the execution proceedings and to file a fresh execution application. The remedy of the decree-holder-Respondent, in these circumstances, did not extend to filing of the fresh execution application. In view of the same, the impugned orders apparently without jurisdiction and cannot be sustained.

For the reason mentioned above, the revision petition is allowed and the impugned order is set aside and it is held that fresh execution application after the delivery of the joint possession was not maintainable. There will be, however, no order as to costs.