Sudhakar alias Sukadeb alias Sidheswar Satapathi vs Batakmshna Satapathy and Others

R.N. Misra, J.—One of the judgment-debtors in an execution for delivery of possession has carried this miscellaneous appeal challenging the order of the executing Court granting delivery of possession afresh.

Decree-holders levied execution Case No. 14 of 1974 in the Court of the learned Subordinate Judge of Bhadrak for recovery of possession of properties allotted to their share in the suit for partition. On 3 -7-1976, the Civil Court Commissioner and the Court''s officers delivered possession and one of the decree. holders acknowledged in writing to have received such possession. On 6-7-1976, the Commissioner reported that possession had already been delivered. When the matter was called on 13th of July, 1976, the executing Court made the following order:

Report of the Commissioner and writ of delivery of possession received back after execution. Call on 21-7-1976 to file objection. if any.

On 21-7-1976, the following order was made:

The decree-holders files Hazira. No objection filed by the parties. Possession given by the Commissioner is accepted....

On 28-7-1976, the decree-holders applied to the Court that possession may be again delivered as after possession was delivered, the judgment-debtors forcibly trespassed upon certain portions and obliterated the marks of identification put by the Commissioner. An objection was filed by the judgment-debtors, but the learned Subordinate Judge by the impugned order directed that the Civil Court Commissioner would go again to effect delivery of possession of the Plaintiffs'' share of the house. This appeal is directed against that order.

Mr Kar for the Appellant contends that delivery of possession having already been effected and the Court having accepted the report of the Commissioner in the absence of any objection, it was not open to the decree-holders to ask the Court to deliver possession afresh on the basis of allegation of subsequent trespass. He relies upon three receipts granted by Bamadeb Satapathy, one of die decree-holders, in support of delivery of possession. These receipts are at pages 9, 11 and 16 of the lower Court''s record. In each of these receipts, Bamadeb in his own hand has admitted to have taken delivery of possession of the properties allotted to their share and Batakrushna has duly signed on each of the receipts. The Commissioner who delivered possession reported to the same effect and his report is at page 17. These documents clearly show that possession had been delivered. Apart from these, when the executing Court posted the matter for objection, no objection was filed and on 21st of July, 1976, the Court accepted the Commissioner''s report regarding delivery of possession in the presence of the decree-holders. It would, therefore, follow that there had actually been delivery of possession on 3rd of July, 1976 and until 21st of July, 1976, the judgment-debtors had not made any trespass nor had they obliterated the marks of identification put by the Commissioner at the time of delivery of possession. If the allegations of the decree-holders are true, it must have been sometime after the 21st of July, 1976 that there was trespass which led to the application of 28th of July, 1976. In these circumstances, can the application of the decree-holders succeed, is the point for consideration. The Supreme Court in the case of Shew Bux Mohata and Others Vs. Bengal Breweries Ltd. and Others, , held:

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. This is what happened in this case. The Decree-holders in the present case of their own accepted delivery of possession with Defendant No. 4 remaining on the premises with their permission. They granted a receipt acknowledging fun delivery of possession. They permitted the execution case to be dismissed on September 8, 1949. on the basis that full possession had been delivered to them by Defendant No. 4. The fact that they put their guards on the premises as mentioned in the Nazir''s return would also show that they had obtained full possession. It was open to the Decree-holders to accept such possession. Having once done so, they are bound to the position that the decree has been fully executed, from which it follows, that it cannot be executed anymore....

The executing Court has allowed the application of the decree-holders on the basis of an authority of the Madras High Court in the case of K. Ramalingam and Ors. v. K.N. Krishna Reddi and Anr. AIR 1974 Mad 325. The learned Single Judge referred to the aforesaid Supreme Court decision and observed:

From the above-stated Supreme Court decision it is clear that if the decree-holder is satisfied with alleged delivery of possession, whether physical or symbolical, he cannot on a subsequent date ask for actual possession by filing a second execution petition; subsequent execution petition can be entertained only in cases where there was no legal, complete and effective delivery of possession on the earlier occasion.

As would appear from paragraph 17 of the reported decision of the learned Single Judge, the judgment-debtors themselves admitted before the Court that there had been no actual, physical delivery of possession to the decree-holder. It has been indicated:

...They (judgment-debtors) have come forward with a specific case that the alleged handing over of actual possession is not true and that as a matter of fact they are in possession of the property. The only persons who could object to a second execution petition if filed, on the basis that the decree has already been satisfied, themselves state that there was no legal, complete or effective delivery of the property. In these circumstances, there is absolutely no substance in the argument that a subsequent execution petition will be objected to as a bar as if it will be a second execution petition filed after the decree has been satisfied.

The facts of the Madras case are, therefore, very different and the ratio of the said decision could not have been used by the executing Court in the instant case, where, as I have already found there was sufficient material to show that possession had already been delivered and the decree had been satisfied.

I would accordingly allow the appeal, reverse the order of the executing Court and dismiss the application of 28th of July. 1976, filed by the decree-holders. There would be no order for costs.

Appeal allowed.