C. Ramasami vs Kuruva Boyan and others

Srinivasan, J.—In the counter filed by the first respondent in C.M.P.15647 OF 1990 (first respondent in the Second Appeal) it is stated that items 1 to 3 have been delivered to him already and the first respondent has produced the certified copies of the delivery athakshis. I accept the evidence afforded by the certified copies of the delivery athakshis and reject the contention of the petitioner-appellant that it was only a paper delivery and the properties (items 1 to 3) were not actually delivered to the first respondent. Learned counsel for the appellant placed reliance on the judgment of Gokulakrishnan, J. as he then was in Ramalingam v. Krishna Reddy 1974 (1) M.L.J. 142=87 L.W. 63. It was held in that case that where delivery of possession in execution of a decree was alleged to have been only a paper delivery and not actual physical delivery, it cannot be said that the decree has been executed in full until the court satisfies itself that there has been a real actual physical delivery in execution. With respect, I do not agree with the said proposition. It is not possible for a court to ignore the evidence afforded by the court officials to the effect that delivery has been effected, on the mere allegation that there was no actual delivery. In order to reject the official records such as the bailiffs endorsements, there must be a definite and specific plea of fraud. In the absence of a plea of fraud with full particulars as are necessary to support the same, the court shall not direct an enquiry as to whether there is actual delivery. In every case the judgment debtor is interested in stating that there is no physical delivery in order that he may obtain an order of stay in the appellate Court. A bare allegation that the delivery is a paper delivery and the appellant continues in possession is hardly sufficient to direct an enquiry whether there is physical delivery. The presumption under S. 114 of the Evidence Act that official acts are performed regularly will undoubtedly apply. Even in the above judgment the following observations are found:

Calling for a report from the trial Court, when especially there is a delivery athakshi is not warranted in every case where the stay petitioners allege that they are in actual possession and that the delivery is only a paper delivery. But, in appropriate cases, where the party seems to be in possession throughout and has also obtained an interim stay from court, and the time lag between the alleged delivery and the grant of stay is short, and the court, on relevant facts, feels that an enquiry is necessary to find out as to who is in actual possession. I do not think the court is barred to have a report from the court in the interests of justice.

Hence the matter depends on the facts of each case.

In that case delivery was not recorded by the executing Court. In the present case delivery has been recorded by the Court. I do not find any circumstances to warrant the calling for a finding on the question of actual or physical delivery.

It is seen that the petitioner has preferred the second appeal with a delay of 45 days. He filed an application for excusing the delay in preferring the second appeal and along with it, filed a petition for an injunction restraining the first respondent herein from interfering with his possession by executing the decree. Interim injunction was granted and it came to an end on 31.10.1990, when the application to condone the delay was disposed of. Thereafter there was no stay or injunction. The second appeal came up for admission only on 5.12.1990 when it was admitted and interim stay was granted. Hence there was ample time for the first respondent to take delivery of possession by executing the decree.

On the facts of this case I hold that the respondent has taken actual delivery of items 1 to 3 as proved by the certified copies of the delivery athakshis, which as already stated, I accept. Hence the interim stay is vacated with reference to items 1 to 3 and C.M.P.15647 OF, 1990 is dismissed in so far as those items are concerned. As regards item No. 4, it continues to be in the possession of the appellant. Hence the interim stay is made absolute with reference to item No. 4 only.