Venkalakshmi Ammal vs Sadasiva Aiyar and Another

The appellant''s case is that at the time of making her present application for execution she was not in possession of the first set of suit properties, and if that case is true and if the appellant''s prior application for possession, was ineffective, there is no reason why she should not now apply for execution of the decree. Even if she had got possession in execution of the original decree, and if subsequently she was wrongly dispossessed before the final decree of the Appellate Court restored the original decree of the District Munsif, she would, on the authority of Theevana Pillai v. Kulla Pillai 5 Ind. Cas 776 : 7 M.L.T. 107 be entitled to apply for delivery of possession a second time.

The grounds upon which her execution petitions have been dismissed are not sound. The appeal is allowed and the case will go back to the Executing Court for enquiry whether on the date of the present application for execution the execution petitioner was in actual possession or not of the first set of properties and for disposal according to law. As regards the second set of properties of which symbolical possession is said to have been obtained there is no appeal before us and our order will not apply to that set. Costs to abide and follow the result.