Jit Singh and Others vs Smt. Bhago and Others

M.M. Kumar, J.—This is a revision petition filed by the judgment debtor-petitioners assailing the order dated 9.5.2001 passed by the District Judge, Faridkot affirming the order dated 21.12.1994 passed by the Additional Senior Sub Judge, Moga.The Additional Senior Sub Judge. Moga has dismissed the objection of the judgment debtor-petitioners to the application filed by the decree holder-respondents.

The facts necessary for deciding the controversy raised in the present petition are that the civil suit No. 246 of 1970 seeking possession of the suit and was filed by one Smt. Bhago decree holder-respondent (now represented by S/Shri Piara Singh and Major Singh sons of Chanan Singh residents of Bhaghapurana, Tehsil Moga, District Faridkot) against the judgment debtor-petitioners and some, others. The suit was initially decreed by the trial court on 6.5.1974 and the appeal filed against the afore-mentioned judgment and decree was dismissed on 19.5.1975. In the second appeal, the decree passed by the appellate court was maintained except the relief with regard to property mentioned at serial No. 8 of the head note of the plaint. The decree passed by the High Court on 20.5.1983 for possession in favour of the decree holder-respondents was in respect of the following land;

"(a) Land bearing khewat Nol57/174, khatauni No. 270 to 273, Khasra numbers 120//122 min east-23 min west-18 min east-21 min, 124//1.2.4, 1-2-4, 120//21min-120//8 min east 22 min west 23 min east 120//24-25.

(c) Land bearing khewat No. 159/176. khatauni Nos.276-277-278-279, khasra numbers 120//9-16-120//10-11-12-13, 120//8 min, 120//8min."

It is pertinent to mention that the decree holder-respondents have earlier filed an execution application in which symbolic possession of the suit land was given to the decree holder respondents. The execution application filed before the Additional Senior Sub Judge from which the present revision petition has arisen seeks to obtain physical possession of the suit property. The Additional Senior Sub Judge, Moga after issuing notice to the judgment debtor-petitioners from six issues on the basis of the pleadings of the parties and dismissed the objections filed by the judgment debtor-petitioners vide his order dated 21.12.1994. Against that order, an appeal was filed before the District Judge. Faridkot. The District Judge, Faridkot affirming the order passed by the Additional Senior Sub Judge, Moga held as under;-

"(a) That the High Court in its judgment dated 20.5.1983 had dismissed the suit of decree holder-respondents in respect of certain land but the suit of the decree holder-respondents was decreed in respect of the following land;

(b) land bearing khewat No. 157/174, khatauni No. 274 to 273, khasra numbers 120//22 min east-23 min east-18 min east-21 min. 124//1-2-3-4, 120//21 min-120//18 min east 22 min west 23 min east 120//24-25.

(c) land bearing khewat No. 159/176. khatauni Nos.276-277-278-279, khasra numbers 120//9-16-120//10-11-12-13, 1200//8 min. 120//8 min.

(b) That the land was mortgaged with one Sant Singh and the same was redeemed by the decree holder-respondents. In this regard, reliance was placed by the decree holder-respondents on rapat roznamcha No. 420 dated 28.7.1986 which reveals that Sant Singh himself reported to the revenue authorities that he received the mortgage - amount from Naginder Singh etc., and after redemption he had delivered the possession in favour of the owners. Every entry to this effect was incorporated in the mutation No. 7350 on 30.9.1977. The mutation has accordingly been acted upon in the subsequent jamabandi for the year 1988-89. These documents were never challenged by the judgment debtor-petitioners before any authority or court. On the contrary, they admitted the factum of redemption in a civil suit No. 465 of 31.3.1992 titled Naginder Singh etc. v. Bhaggo. The averment made in civil Suit No. 465 of 31.3.1992 filed by the judgment debtor-petitioners reveals that the land stood redeemed prior to the filing of the suit on 31.3.1992 and the judgment debtor-petitioners could not wriggle out of those admissions.

(c) That it was Sant Singh mortgagee who could have argued, that land was still under mortgage and had not been got redeemed. Therefore, the judgment debtor-petitioners cannot raise objections to the execution of the decree as requested by the decree holder-respondents. It was held that the judgment debtor-petitioners have no locus standi io raise such objection especially when no such objection was raised during the trial of the civil suit which resulted into passing of decree as upheld by the High Court.

(d) That the filing of earlier application for delivery of symbolic possession does not cause obstruction to tile another applicator for delivery of physical possession. For this proposition, reliance was placed on a agreement of this court in the case of Bishan Singh v. Hukam Chand and Ors. (1989)96 P.L.R. 174.

On the basis of the above mentioned grounds, the District Judge, Faridkot has dismissed the appeal of the judgment debtor-petitioners.

I have heard Shri S.P. Gupta, learned counsel for the petitioners and have perused the records with his assistance. He has submitted that under order XXI Rule 35 of the Code of Civil Procedure, i908 once the symbolic possession of the suit property has been delivered in the earlier execution then the decree is deemed to have been satisfied and for obtaining physical possession second execution application would not lie. According to the learned counsel the decree holder-respondents have to file a fresh suit. For this proposition, he has placed reliance on judgment of the Supreme Court in the case of Shew Bux Mohata and Others Vs. Bengal Breweries Ltd. and Others, two judgments of this Court in Jaimal Singh Dasaundha Singh Vs. Rakha Singh and Another, and Niranjan Singh v. Rameshwar Singh and Anr. 1977 P.L.J. 267.

I have thoughtfully considered the submission made by the learned counsel for the petitioners and regret my inability to accept the same because firstly there is no adjudication on the earlier execution application which was dismissed as withdrawn on 10.8.1991 after obtaining symbolic possession. The decree cannot be considered to have been satisfied wherein it was specifically held that the decree holder-respondents were entitled to possession of the land described in paras above. In the judgment of the Supreme Court in Shew Bux Mohata''s case (supra) relied upon by the learned counsel for the judgment debtor-petitioners the provisions of Order XXI Rule 35 of the Code have been interpreted to mean that a person in possession and bound by the decree has to be removed only if it is necessary to give the decree holder the possession of the property he is entitled to under the decree. It has further been observed by the Supreme Court that it is not necessary to actually remove the judgment debtor from the premises if such a position satisfy the decree-holder. The principle laid down by the Supreme Court cannot be disputed because once a decree holder accepts the symbolic possession as satisfaction of the decree then the second application for the execution of the decree would not be competent. The rationale appears to be that once the decree holder opts to rewrits his rights conferred by the decree by accepting the possession of the judgment debtor, as was situation in the case of Shew Bux Mohata''s case (supra) then a new cause of action comes into existence. Naturally a fresh suit has to be filed in such a situation. But in the present case the earlier application was simply withdrawn on 10.8.1991 and no where satisfaction of the decree holder-respondents was recorded by the Court. In somewhat similar circumstances this court has an opportunity to consider the provisions of Order XXI Rule 35 of the Code in the case of Virinder Mohan and Another Vs. Bhatinda Improvement Trust and Another, . In that case also symbolic possession was delivered. However, the execution application for delivery of actual possession was kept pending. The contention raised on behalf of the judgment debtor that the decree could not be executed seemed time alibi on the same execution application, this court held that delivery of symbolic possession in which actual possession ought to have been given is without any effect as symbolic possession would not satisfy the terms of the decree. The argument that symbolic possession should be considered actual possession was also rejected. Placing reliance on an earlier judgment of this Court in Kaku Singh and Others Vs. Gobind Singh and Others, this Court held that the terms of the decree by delivering actual possession has to be satisfied and the delivery of symbolic possession earlier would not cause any obstruction to the prayer of the decree holder for obtaining actual possession. In the present case, the earlier application was dismissed as withdrawn and no adjudication has taken place. Therefore, the judgments in the cases of Show Bux Mohta and Niranjan Singh (supra) would not come to the rescue of the judgment debtor-petitioners to raise obstruction in the execution of the decree by delivering actual physical possession to the decree holder-respondents. Therefore, the argument raised by the judgment debtor-petitioners that the execution application filed by the decree holder-respondents was not maintainable is liable to be rejected.

For the reasons recorded above, this revision petition fails and is dismissed.