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Mahadev Sakharam Parkar Vs. Janu Namji Hatley - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Second Appeal No. 553 of 1906
Judge
Reported in(1912)14BOMLR115
AppellantMahadev Sakharam Parkar
RespondentJanu Namji Hatley
Excerpt:
civil procedure code (act xiv of 1882), sections 263, 264, 318, 319-decree-execution-delivery of property-symbolical possession-actual possession- limitation.;a mere formal possession of immoveable property by a purchaser at a court sale cannot prevent limitation running in favour of the judgment-debtor where the latter remains in actual possession and the properly in not in the occupancy of a tenant or other person entitled to occupy the same.;symbolical possession is not real possession nor is it equivalent to real possession under the civil procedure code except where the code expressly or by implication provides that it shall have that effect.;gopal v. krisnarao (1900) i.l.r. 25 bom. 275 and muhadeo v. parashram (1900) i.l.r. 25 bom. 358, overruled. - .....scott, kt., c.j.1. we answer the question referred in the negative. symbolical possession is not real possession nor is it equivalent to real possession under the civil procedure code except where the code expressly or by implication provides that it shall have that effect.2. sections 264 and 319 of the code of 1882 prescribed and impliedly gave effect to symbolical possession under certain specified conditions but symbolical possession was neither prescribed nor recognised by sections 265 or 318 of that code or by the corresponding sections of the earlier codes nor in our opinion do the bengal full bench decisions, jitggobundhu v. ram chunder by sack ilr (1880) cal. 584 and joggobundhu v. purnanund ilr (1889) cal. 530 suggest the contrary.3. under the new code of 1908, rule 35 (2) of.....
Judgment:

Basil Scott, Kt., C.J.

1. We answer the question referred in the negative. Symbolical possession is not real possession nor is it equivalent to real possession under the Civil Procedure Code except where the Code expressly or by implication provides that it shall have that effect.

2. Sections 264 and 319 of the Code of 1882 prescribed and impliedly gave effect to symbolical possession under certain specified conditions but symbolical possession was neither prescribed nor recognised by Sections 265 or 318 of that Code or by the corresponding sections of the earlier Codes nor in our opinion do the Bengal Full Bench decisions, Jitggobundhu v. Ram Chunder By sack ILR (1880) Cal. 584 and Joggobundhu v. Purnanund ILR (1889) Cal. 530 suggest the contrary.

3. Under the new Code of 1908, Rule 35 (2) of Order XXI provides one additional case in which symbolical possession may be resorted to.

4. We overrule Gopal v. Krishnarao ILR (1900) 25 Bom. 275 and Mahadeo v. Parashram ILR (1900) 25 Bom. 358 which, we think, were wrongly decided.


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