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Kaku Singh and ors. Vs. Gobind Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. First Appeal No. 179 of 1956 treated as Civil Revn. No. 551 of 1957
Judge
Reported inAIR1959P& H468
ActsCode of Civil Procedure (CPC) , 1908 - Sections 144 and 151 - Order 21, Rule 35 and 35(1) - Order 41, Rule 5
AppellantKaku Singh and ors.
RespondentGobind Singh and ors.
Appellant Advocate Babu Ram, Adv.
Respondent Advocate D.C. Gupta, Adv.
DispositionAppeal dismissed
Cases ReferredDin Dayal v. Union of India
Excerpt:
.....delivery of the possession for all purposes. later on the judgment-debtors who claimed to be in actual possession instituted a suit for declaration that the previous decree had been obtained by fraud and that in any case the judgment-debtors had acquired good title to the land by adverse possession for over 12 years since then. 8. it would, therefore, seem that so far as the law of limitation is concerned (practically all the authorities discussed above decided matters which arose on questions of limitation) it is well settled that delivery of symbolical possession is deemed to be as effectual as delivery of actual possession especially when any dispute arises between the decree-holder and the judgment-debtor. for, if no execution proceedings were pending and the decree had been..........restoration of possession of certain lands which had been taken in execution proceedings by the decree-holders. it would be necessary to briefly state the facts.2. on the 21st of june, 1956, a decree for pre-emption of agricultural land measuring 187, bighas 5 biswas situate in village bhore was passed in favour of kaku singh and others, who are the appellants now. the decree-holders deposited the sum of rs. 20,000/- which was determined to be the pre-emption money and on 21-8-1956, execution of the decree was taken out by them. on 23-8-1956, the executing court issued warrants for possession and ordered that the warrants should be returned after compliance on 10-9-1956. on 9-9-1956, actual possession of kila nos. 140 to 147 was delivered. on the remaining land the crops were standing.....
Judgment:

A.N. Gover, J.

1. This appeal is directed against the order of the District Judge, Patiala, by which he has ordered restoration of possession of certain lands which had been taken in execution proceedings by the decree-holders. It would be necessary to briefly state the facts.

2. On the 21st of June, 1956, a decree for pre-emption of agricultural land measuring 187, bighas 5 biswas situate in village Bhore was passed in favour of Kaku Singh and others, who are the appellants now. The decree-holders deposited the sum of Rs. 20,000/- which was determined to be the pre-emption money and on 21-8-1956, execution of the decree was taken out by them. On 23-8-1956, the executing Court issued warrants for possession and ordered that the warrants should be returned after compliance on 10-9-1956. On 9-9-1956, actual possession of kila Nos. 140 to 147 was delivered. On the remaining land the crops were standing and only symbolical possession wati delivered.

On 10-9-1956, the decree-holders orally represented to the executing Court that actual possession of the land on which the crops were standing should also have been delivered. The case was adjourned to 16-9-1956, and an order was made that actual physical possession should be delivered to the decree-holders. The warrants having been issued on the 20th of September, 1956 they were sent to the Collector on the same day and he forwarded them to the Tehsildar for due execution. On 20-9-1956, the judgment-debtors got a stay order from the High Court of erstwhile Patiala and East Punjab States Union by which execution was stayed.

The order was taken dasti and presented to the District Judge, who was the executing Court, on the same day. Thereupon the executing Court ordered the warrants to be recalled but by the time the orders reached the Revenue authorities, the possession of the land had been delivered. When the orders were actually delivered to the Revenue authorities it was reported by them that possession had already been given to the decree-holders and therefore no action could be taken. It is stated that possession was actually delivered on 21-9-1956, i. e., after the stay order had been made by the High Court.

Thereupon three out of the six judgment-debtors, namely, Mst. Sarla Devi, Tara Singh and Sadhu Singh filed an application before the executing Court asking for restoration of possession on the grounds that the stay order by the High Court had been passed long before the delivery of possession and consequently possession could not have been delivered after the making of the stay order and therefore the same should be restored. This application was resisted by the decree-holders but the learned District Judge by his order dated 30-10-1956, accepted the application, and ordered that possession of lands other than the land comprised in kila Nos. 140 to 147 should be restored to the judgment-debtors. The possession of kila Nos. 140 to 147, however, was not ordered to be restored as the stay order had not been made before the 10th of September 1956, when actual physical possession of those kila numbers had been given to the decree-holders.

3. There are two preliminary matters, however, which must be decided before any decision is given on the merits of the case. One of the questions is whether the present appeal is competent under Section 47 of the Code of Civil Procedure. The order under appeal directed restitution of possession of certain land as stated before. This order was clearly not made under the provisions of Section 144 of the Code inasmuch as no decree had been varied or reversed and restitution had been ordered only because a stay order had been made by the High Court.

Such an order could only be made in exercise of the inherent powers under Section 151 and if that bo so, only a revision would be competent and not an appeal. It is true that there is authority tor the view that where an execution sale is set aside under Order XXI Rule 92 and restitution is to be allowed, Section 144 has no application, but such restitution can be granted in exercise of the Court's inherent power, and where the Court acting under Section 151 exercises the same jurisdiction which Section 144 gives it, the order of restitution made under Section 151 is appealable; Vide Sasikanta Acharjee v. Jalil Baksh Munshi, AIR 1931 Cal 779 (2). The Calcutta case, however, was decided more or less on certain grounds peculiar to that case and the practice and the view followed in earlier decisions of that Court were leargely followed.

It was recognised in that case that in the definition of decree as given in Section 2(2), Section 47 had been kept separate from Section 144, but the fact that in an artificial definition intended only for purposes ot laying down provisions for appeals, those sections have been enumerated separately should not be taken to mean that questions which arose under Section 144 might not be questions falling within Section 47. Applications for restitution which were not by way of execution of the decree varying or reversing an original decree but were independent applications in connection with execution proceedings were considered to be such as gave rise to matters under Section 47 of the Code.

With all respect it is somewhat difficult to accept the view adopted by the Calcutta High Court in the case referred to above. It seems to be widely accepted now that such proceedings or orders as are made under Section 151 can only be made if they do not fall within any of the other provisions of the Code, and if an order is properly made under Section 151 it is not anpealable and can be challenged only by petition for revision. In Mam Chand v. Ali Mohammed, AIR 1934 Lah 1023, Abdul Rashid J., held that apart from the provisions of Section 144 the Court had ample power under Section 151 to order restitution.

He did not accept the rule laid down in the Calcutta case Gnanada Sundari v. Chandra Kumar De, AIR 1927 Cal 285, that an order made under Section 151 in exercise by analogy of jurisdiction under Section 144 was appealable. He treated the memorandum of appeal as a petition for revision in that case. To the same effect are the views of the High Court of Patna and the Chief Court of Oudh: Sukhdeo Dass v. Rito Singh AIR 1917 Pat 495; Brij Mohan Singh v. Rameshar Singh, AIR 1939 Oudh 273. I, therefore, consider that an appeal would not lie in the present case, but I would treat the memorandum of appeal as a petition for revision as has been unwed for by the learned counsel for the decree-holders.

4. The other question that has been raised on behalf of the decree-holders is that out of the six vendees only Mst. Sarla Devi, Tara Singh and Sadhu Singh had filed the appeal to the High Court and had applied for restitution as well and that Cobind Singh, Kapur Singh and Ujjagar Singh who are now represented by Shri Dalip Chand Gupta never filed any appeal or moved for restitution of possession. Later on it transpired that on 4-6-1957, Gobind Singh made an application for being transposed to the array of appellants in the appeal which is pending against the decree.

This application was granted on 9-8-1957, sub-ject to all just exceptions. In the meantime on 5-8-1957, some sort of settlement is said to have been made between Sada Devi, Tara Singh and Sadhu Singh on the one side and the decree-holders on the other by which the aforesaid judgment-debtors agreed to allow the decree-holders to remain in possession because the order of restitution had not so far been carried out and the possession was still with the decree-holders. It has been strenuously urged by the counsel for the decree-holders that Gobind Singh and others have no locus standi to defend the present appeal or revision as they never obtained any stay order and never applied for restitution of possession.

On the other hand, it is pressed before me that there had been one sale which was sought to be preempted, the sale being indivisible in favour of all the vendees and that the appeal which had been filed by three of the vendees, namely Sarla Devi and others as well as the application for restitution would have enured for the benefit of Gobind Singh and others as well. Moreover, Gobind Singh was transposed to the array of the appellants in the other appeal in which the stay order had originally been granted and therefore if Sarla Devi and others had compromised with the decree-holders there should be no prejudice to Gobind Singh and others who were entitled to challenge the decree for pre-emption in their own right and to prosecute all proceedings which may be necessary to safeguard their rights: The objection raised has, therefore, no force.

5. The first point which has been urged by Shri Babu Ram, the learned counsel for the appellants, is that the decree had been completely executed before 20-9-1956, when the stay order was made by the High Court. According to him possession had passed of the entire land in question by 10-9-1956, as actual possession of kila Nos. 140 to 147 had been admittedly delivered and symbolical possession. of the remainder of the land bad also been delivered. He contends that the mere fact that crops were standing, was no ground for non-delivery of actual possession of the entire land and that the Court by ordering delivery of actual physical possession on 16-9-1956, of such land of which only symbolical possession had been delivered, merely rectified a mistake which had been made by its own officers.

According to Shri Babu Ram, symbolical possession is as good as physical possession and is effectual delivery of the possession for all purposes. He has invited my attention to various authorities: Mt. Ram Kali v. Gowardhan Lal. AIR 1935 Lah 612; Erfan AH v. The King, AIR 1948 Pat 418 and Jawala Parshad v. Jiwan Ram, AIR 1950 Pepsu 22, in which it has been held that symbolical possession is equal to actual possession. A great deal of stress was laid on the Pepsu decision. In that case a suit had been brought to obtain possession of certain lands on the allegation that the decree-holder had been put in possession of the property in dispute in execution of the decree and that he had subsequently been dispossessed. The defendants denied that the plaintiffs had ever obtained possession and set up adverse possession of their own.

In that case the crop was found to be standing on the land and therefore only formal possession had been delivered and the fact of delivery of symbolical possession had been proclaimed in the village by beat of drum. The defendants 'had set up the plea that the delivery of the symbolical possession was not equivalent to actual possession and therefore it did not put an end to their adverse possession, Chopra J. examined at length the various authorities dealing with the effect of delivery of symbolical possession and came to the conclusion that symbolical possession should be deemed equivalent to actual possession and that a subsequent suit by the decree-holder for actual possession instituted within 12 years from the date of the symbolical possession must be deemed to be within time.

In AIR 1935 Lah 612, a decree for possession had been made and ultimately possession was given to the decree-holder by pointing out the Gelds the actual possession being with the tenant. Later on the judgment-debtors who claimed to be in actual possession instituted a suit for declaration that the previous decree had been obtained by fraud and that in any case the judgment-debtors had acquired good title to the land by adverse possession for over 12 years since then. Tek Chand and Bhide JJ. relied on the decision of the Privy Council in Sri Radha Krishna Chanderji v. Ram Bahadur, AIR 1917 PC 197 (2), and followed the view that symbolical possession was sufficient to dispossess a person, who was a party to the execution proceedings. The objection that the delivery of symbolical possession was irregular inasmuch as the land was not in occupation of the tenant as required by the provisions of Order 21, Rule 36 of the Code of Civil Procedure, was repelled on the ground that when a person was put in symbolical possession of property by an officer of the Court, where actual possession would have been delivered the form in which execution was given was immaterial, and as between the parties to the proceedings such formal possession was as effectual as a complete transfer of possession from one party to another.

In the Privy Council case referred to above, it was argued before their Lordships that symbolical possassion would not avail and that only actual dispossession could interfere with adverse possession. Their Lordships of the Privy Council, however, followed a decision of the Full Bench of the Calcutta High Court, Jugobundhu Mukerjee v. Ram Chunder Bysack, ILR 5 Cal 584, which laid down the rule that symbolical possession availed to dispossess the defendants sufficiently, because they were parties to the proceedings in which it was ordered and given.

6. Referring to the provisions of the old Code--Sections 223 and 224--it was pointed out that Section 223 applied where the land was in the actual possession of the defendant and Section 224 where it was in occupation of the tenants. In the one case, delivery of the land was to be made, by placing the plaintiff in direct possession, and in the other, the delivery was to be effected by officers of the Court in accordance with the provisions of Section 224. That was the only way in which the decree of the Court awarding possession to the plaintiff could be enforced, and as in contemplation of law both parties must be considered as being present at the time when the delivery was made, the learned Judges considered that the delivery thus given must be deemed equivalent to actual possession. The aforesaid rule was applied in a later Full Bench decision of the Calcutta High Court in Joggubundhu Mitter v. Purnanund Gossami, ILR 16 Cal 530, where again the effect of delivery of symbolical possession was examined. The principle was extended even to the case of a purchaser at an auction in execution of decree.

7. The use of the expression 'symbolical or formal possession' was considered somewhat critically by a Bench of the Madras High Court in Kocherlakota Venkatakristna Row v. Vadrevu Venkappa, ILR 27 Mad 262. In all cases of delivery of possession of immovable property the officer entrusted with warrant of delivery proceeds to the spot and delivery of possession is effected on the land in the presence of the decree-holder and others and after the delivery is effected, a receipt acknowledging delivery of possession and attested by witnesses is obtained and forwarded to the Court along with the return of the warrant. If the judgment-debtor be the party in possession, it is difficult to see what else has to be done to put the decree-holder in actual possession. The delivery of possession, therefore, cannot legally be characterised as symbolical or formal.

8. It would, therefore, seem that so far as the law of limitation is concerned (practically all the authorities discussed above decided matters which arose on questions of limitation) it is well settled that delivery of symbolical possession is deemed to be as effectual as delivery of actual possession especially when any dispute arises between the decree-holder and the judgment-debtor. But delivery of symbolical possession given in circumstances in which actual possession ought to have been given is a nullity as symbolical possession is not actual possession nor is it equivalent to actual possession except where the Civil Procedure Code expressly or by implication provides that it should have that effect vide Ml. Khairan v. Raghbir Singh, AIR 1937 Lah 350.

9. In the present case the decree-holders themselves felt entitled to actual possession and that was the reason why on 16-9-1956, a prayer was made to the Court that actual physical possession should be delivered which was acceded to. It cannot, therefore, afford any benefit to the 'decree-holders to invoke the principle that the delivery of symbolical possession was as effectual as the delivery of actual possession. There is another aspect of the matter which needs consideration. The essential question is whether on the date when the High Court made an order staying execution, namely, 20-9-1956, any execution proceedings- could be said to be pending and which had to be stayed.

For, if no execution proceedings were pending and the decree had been satisfied on 10-9-1956, by delivery of actual possession of some land and-symbolical possession of the remainder, there remained nothing that could have been ordered to be stayed. It seems to me that when the decree-holders applied for delivery of actual possession, the execution proceedings either continued or started afresh because when formal possession had been given in execution proceedings, a fresh application in execution for actual possession of the property can be maintained and such proceedings will clearly be execution proceedings. There is no need to bring a suit for recovery of actual possession even if symbolical possession had previously been delivered and actual possession can be obtained by means of execution, vide Khetra Mohan Kundu v. Jogendra Chandra Kundu, AIR 1918 Cal 350.

The execution proceedings were either continuing or fresh execution proceedings had been initiated and consequently when the order was made on 20-9-1956, staying execution, then it became operative from the point of time it was made and actual possession could not have been delivered thereafter as was done in the present case.

10. The other point which has been raised on behalf of the decree-holders is with regard to the effect of the stay order made on 20-9-1956. I have been referred to some decisions where the view has been adopted that a stay order takes effect only when it is communicated; Sm. Tarulata Devi v. Bi-bhuti Bhushan Roy, AIR 1953 Cal 467; Parsotam Saran v. Barhma Nund, AIR 1927 All 401 (FB), This contention cannot be accepted in view of the decision of a Bench of this Court in Din Dayal v. Union of India, 55 Fun LR 478: (AIR 1954 Punj 46), according to which an order passed by an appellate Court for staying of execution proceedings operates as soon as it is made and the legal authority to proceed with the execution is withdrawn by the order of stay.

11. In view of what has been discussed above, the contention of the decree-holders must fail and consequently this appeal treated as revision will stand dismissed. In the circumstances I make no order as to costs.


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