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Bhaichand Gulabchand and ors. Vs. Bala Khandu Teli - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in4Ind.Cas.834
AppellantBhaichand Gulabchand and ors.
RespondentBala Khandu Teli
Excerpt:
civil procedure code (act xiv of 1882), sections 263 and 264 - decree for delivery of immovable property--person bound by the decree in possession of property--execution--manner in which possession to be delivered--symbolical possession. - - 1087 that as between the judgment-creditor and the judgment-debtor symbolical possession is as good as actual possession to give the purchaser the right to bring his suit for possession within twelve years......by the subordinate judge mr. dixit and upon that statement it is manifest that his conclusion that actual possession was not given and that the defendant remained in possession as before is correct.4. it has, however, been argued by mr. patkar, on behalf of the appellants, that the lower courts have made use of the expression symbolical possession in describing what was obtained by the plaintiffs in execution. i do not think that this is correct as regards the judgment of mr. dixit who merely says the question then is whether in execution of a decree tarachand obtained actual possession or only symbolical possession'; for, he finds, as i have stated, that actual possession was not obtained but he does not find that symbolical possession was obtained. the district judge says: 'i agree.....
Judgment:

Basil Scott, C.J.

1. There is no question in this case but that the plaintiffs' suit is barred unless they obtained possession in execution of a decree, by which the defendant was bound, in January 1902.

2. It has been held by the lower Court that the defendant was by reason of his conduct after notice for execution, notwithstanding the informality with regard to service of the summons in the suit, bound by the execution proceedings. That being so, possession under the decree could be obtained in execution as against him by the procedure laid down in Section 263 of the Civil Procedure Code of 1882, namely by his removal from the property in favour of the decree-holder. This procedure, however, was not followed.

3. The facts proved are stated with clearness by the Subordinate Judge Mr. Dixit and upon that statement it is manifest that his conclusion that actual possession was not given and that the defendant remained in possession as before is correct.

4. It has, however, been argued by Mr. Patkar, on behalf of the appellants, that the lower Courts have made use of the expression symbolical possession in describing what was obtained by the plaintiffs in execution. I do not think that this is correct as regards the judgment of Mr. Dixit who merely says the question then is whether in execution of a decree Tarachand obtained actual possession or only symbolical possession'; for, he finds, as I have stated, that actual possession was not obtained but he does not find that symbolical possession was obtained. The District Judge says: 'I agree with the lower Court that the decree-holder did not get anything except symbolical possession and that physical possession of the defendant was undisturbed.' He evidently read the sentence in which the expression symbolical possession is used by Mr. Dixit in the same way as Mr. Patkar would have me read it in this appeal. The importance of the expression for the purpose of the argument is that it has been held in Mahadeo v. Parashram Bhagwan Chand 25 B. 358: 2 Bom L.R. 1087 that as between the judgment-creditor and the judgment-debtor symbolical possession is as good as actual possession to give the purchaser the right to bring his suit for possession within twelve years. As I understand the provisions of the Civil Procedure Code relating to possession in the case of decrees for immovable property, possession may be obtained in one of two ways, either in the manner prescribed in Section 263 or in the manner prescribed in Section 264, and when symbolical possession is referred to as possession recognized by law, it must, I think, have reference to possession under Section 264. This was the view taken by Mr. Justice Telang in Lakshman v. Moru 16 B. 722.

5. As the facts proved in this case show that no possession was obtained in the manner prescribed in Section 264, there has been, in my opinion, no symbolical possession, and, as there has been no actual possession, it follows that the plaintiffs' suit is barred by limitation.

6. I, therefore, affirm the decree of the lower Court and dismiss the appeal with costs.


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