Krishnamoorthy Iyer, J.
1. This appeal has been referred to a Division Bench on the grounds that there is an apparent conflict in the decisions of this Court reported in Sadasivan Pillai v. State, 1959 Ker LT 501, and Vellakutty v. Karthiyani, 1967 Ker LT 667 = (AIR 1968 Ker 179).
2. The second appeal which is filed by defendants 2 to 10 arises out of a suit for permanent injunction to restrain them from interfering with the possession of the plaint property by the plaintiff.
3. The plaint schedule property is a paddy land covering an extent or 1 acre 80 cents. The suit was dismissed by the trial court and it was decreed by the learned appellate Judge.
4. The plaintiff claims possession of the plaint schedule property in pursuance to the delivery in execution, of the decree in O. S. 65 of 1957 on the file of the Palghat sub Court evidenced by Ext. P-2. The defendants while denying the title and possession of the plaintiff claim to be in possession, of the property. The defendants deny the delivery of possession of the property under Ext. P-2 to the decree-holder in O. S. 65 of 1957 and they have also adduced evidence to prove their possession of the plaint schedule property even after the date of Ext. P-2.
5. The learned District Judge without examining the evidence given by the defendants upheld the possession of the plaintiff merely on the basis of Ext. P-2 relying on the decision in 1959 Ker LT 501, which has followed a decision of the Travancore-Cochin High Court reported in Velayudhan Kurup v. State, 1953 Ker LT 31 = (AIR 1953 Trav-Co 340). The learned Judge observed:
'On the question of possession, I think that Exhibit P-2 is decisively in favour of the plaintiff. It can be seen from Exhibit P-2 that the entire survey No. 64 was delivered over to the plaintiff on 8-4-1963. P. W. 3, the Village Officer who has attested Exhibit P-2, the delivery account, swears about the demarcation of the property and delivery of the same. There is no reason to disbelieve him. So the fact of delivery is proved.'
After referring to the decisions already referred to, the learned Judge concluded as follows:--
'So it is evident that once the property was delivered over to the plaintiff, the defendants cannot contend that they are in possession of the property since they are not parties to the decree in which delivery was effected and their remedy is to seek redelivery in appropriate proceedings.'
The learned Judge therefore did not consider the evidence adduced by the defendants to prove that in spite of Ext. P-2 they have been continuing in possession of the property.
6. In 1953 Ker LT SI = (AIR 1953 Trav-Co 340), Koshi C. J., observed:
'...... once it is found that the Aminhad gone to the spot and put the decree-holders in physical possession, if persons other than the judgment-debtor claim to be in possession on the date of that delivery, the remedy open to them was to seekredelivery under the provisions enacted in Order XXI, Code of Civil Procedure, or to bring a fresh suit to recover possession.'
These observations were made after the learned Judge has found on an appreciation of the evidence that there was in fact transfer of possession in pursuance to the delivery proceedings. The dictum laid down by the learned Judge after such a finding is supported by Order 21, Rule 100, sub-rule (1), C. P. C, which reads thus:
'Where any person other than the Judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.'
The above provision is based on the principle that when a stranger to an execution proceeding is dispossessed he cannot take the law into his own hand and trespass on the property actually delivered. Following this decision Anna Chandy, J. in 1959 Ker LT 501, observed as follows:
'The attempt of the accused with the help of his political friends to take the law into his hands, is a negation of all rights to property. It is well settled law that where a court effects delivery the Court really puts such a person in physical possession of the property delivered -- Vide 1953 Ker LT 31 = (AIR 1953 Trav-Co. 340). The delivery evidenced by Ext. P-1 and supported by the evidence of P. W. 3 the Amin who effected the delivery to P. W. 1 cannot be stigmatised as a sham transaction. Aggrieved persons will have to seek redelivery or to bring a fresh suit and not bring together their comrades to disturb the peaceful possession of the property delivered over.'
These observations were again made after a finding that there was de facto transfer of possession in execution of the decree. In 1967 Ker LT 667 = (AIR 1968 Ker 179) with reference to the passage from 1953 Ker LT 31 = (AIR 1953 Trav-Co. 340), quoted by us Madhavan Nair, J. made the following observation:
'I am afraid the dictum in the above passage has been laid too broadly. It may be justified in the circumstances of that case where the mortgagee resisted an action in redemption urging patently false pleas on behalf of his tarwad, got worsted in all the Courts and was at last ousted, and then his sister picked up the string and instituted a fresh suit for cancellation of the decree and execution proceedings urging the identical contentions and trespassed on the property with her people and began to reap the crop thereon heedless of the protest made by the owner to whom the property had been delivered by Court. A fight ensued in which the mortgagee also joined; and the question waswho took the law unlawfully into his or her hands. The Court held the act of the mortgagee and his sister, niece and nephew-in-law to be unwarranted. The evidence in the case was clear that the owner had been put in physical possession of the property by Court, that the mortgagee and his tarwad had no right in the property after redemption and that the mortgagee's relations when they began to harvest the crop were defying the law and rightful possession of the land by its real owner. It was in these circumstances that the afore-cited observations were made by their Lordships in the Kurup's case, 1953 Ker LT 31 = (AIR 1953 Trav-Co 340). If judicial observations are to be understood secundum. subjectam materiam (with reference to the subject-matter), 'the other persons' bound by the possession proceedings are the members of the family of the judgment-debtor who urge no right in the property independent of that advanced by the judgment-debtor unsuccessfully in all the Courts in the hierarchy. But if the general expression in the quote is taken to mean that in every case a delivery proceeding would bind not only the judgment-debtor but any and every one in the world it would be an astounding proposition. Rights in immovable property cannot be left to the mercy of an Amin deputed to carry out a delivery order of the Court.'
We do not understand the observations of Koshi, C. J. in 1953 Ker LT 31 = (AIR 1953 Trav-Co 340), as meaning that the delivery proceedings are binding even on strangers. The observation made by the learned Judge is only to the effect that if in execution of a decree, property has been delivered as a matter of fact even from the possession of the persons who are not parties to the decree and who are not bound by the same they have to resort to the Court for getting back possession of the property. We do not think that the decision in 1953 Ker LT 31 = (AIR 1953 Trav-Co 340), has laid down anything beyond that and that is how it was understood by Anna Chandy, J. in 1959 Ker LT 501. We are therefore of the view, that there is no conflict at all in the decisions of this court on this question.
7. The fact remains that the learned District Judge is wrong in holding that the delivery proceedings are conclusive even against the defendants. It is stated before us by counsel for the defendants that independent evidence has been adduced that even after the delivery defendants have been in possession of the property. If that is so, it will obviously prove that they have not been dispossessed in execution of the decree in pursuance to Ext. P-2, and Ext. P-2 therefore cannot in any way affect the possession of those defendants. It was therefore the duty of the learned District Judge to have appreciated Ext. P-2 in the light of evidence furnished by thedefendants. We, therefore, set aside the decree and judgment of the lower appellate court and direct the learned District Judge to take back the appeal to his file and dispose of the same in the light of the observations made above. The second appeal is thus allowed. But we make no order as to costs. The court-fee paid for the appeal memorandum will be refunded to appellant's counsel.