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Shobha Lal Vs. Laxmi Lal - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberEx. Second Appeal No. 20 of 1976
Judge
Reported inAIR1981Raj20
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 35
AppellantShobha Lal
RespondentLaxmi Lal
Appellant Advocate N.N. Mathur, Adv.
Respondent Advocate N.P. Gupta, Adv.
DispositionAppeal allowed
Cases ReferredG. Das v. Fatik Chandra.
Excerpt:
.....perfectly within his rights to come before the executing court a second time to have his remedy. having once done so, he is bound by what he has endorsed on the warrant to the effect that he has obtained possession of the shop. air 1957 assam 123. this decision is of no assistance and is clearly distinguishable......the order of the munsif, udaipur dated april 26, 1976.2. a few facts may be recounted here; the decree-holder-respondent obtained a decree for possession of the shop situate in mochi vada, udaipur on may 11, 1971. the decree, passed by the munsif, udaipur reads as under;'the plaintiff's suit no. 150/69 is therefore decreed with cost who shall be entitled to the vacant possession of the shop and the rent due rs. 612/- and damages @ rs. 17/- per month for the use and occupation till a vacant possession is delivered to him has already paid (?). the defendant is however allowed 6 months time to vacate the shop and deliver its possession to the plaintiff',on appeal, the learned civil judge modified the decree in so far as the plaintiff-landlord was held not entitled to recover rs. 612 from.....
Judgment:

S.K. Mal Lodha, J.

1. This second appeal by the judgment-debtor is directed against the order dated October 6. 1976 of the learned Additional Civil Judge. Udaipur, by which he set aside the order of the Munsif, Udaipur dated April 26, 1976.

2. A few facts may be recounted here; The decree-holder-respondent obtained a decree for possession of the shop situate in Mochi Vada, Udaipur on May 11, 1971. The decree, passed by the Munsif, Udaipur reads as under;

'The plaintiff's suit No. 150/69 is therefore decreed with cost who shall be entitled to the vacant possession of the shop and the rent due Rs. 612/- and damages @ Rs. 17/- per month for the use and occupation till a vacant possession is delivered to him has already paid (?). The defendant is however allowed 6 months time to vacate the shop and deliver its possession to the plaintiff',

On appeal, the learned Civil Judge modified the decree in so far as the plaintiff-landlord was held not entitled to recover Rs. 612 from the defendant-tenant, which has already been paid, The execution was levied by the decree-holder on January 17. 1973. warrant under Order XXI, Rule 35, C. P. C. dated March 10, 1973 was issued. In the warrant, the following is mentioned:

^^nqdku dk dCtk xqe Qhj dj yh;kchp dh nhokj eSus viuh [kq'kh ls fxjkbZ rFkk Vhu eSus dCts fy;s fctyh dk ehVjfctyh okys vkus ij gVok nwaxk n% y{ehey**

On April 16, 1975, an application was moved on behalf of the decree-holder for issuance of a fresh warrant for delivery of possession. It will be pertinent to quote the following from the application, which was filed by the decree-holder :

2- ;g fd bl lEcU/k esa rkehy dhdk;Zokgh fnukad 8&4&75 djkus dk iz;kl fd;k x;k tSlk fd fjiksVZ esa fofnrgksxk ml le; ckotwn enw;u ifRu ,oa yM+fd;k vUnj cSB xbZ Fkh] ftudks ckgj ckotwndksf'k'k ugha fudkyh tk ldh dkuwu izko/kkuks ds vulkj ;g vko';d gS fd ,slsO;fDr;ksa dks dCtk tkos- vkSj tc rd ,slk ugha gks lEifr dk dCtk fn;k ekuk tkoses Qkyrw dk fookn iSnk gksrk gS A**

^^3- ;g fd lsYl vehu th ds ckotwniz;kl ds iwjh dk;Zokgh ugha gks ldh&&ifj.kke; ;g gqvk fd bl fy[kk i<+hds ckn Hkh en;wu i{k edku esa gS] o fliqjnxha ds iz'u ij fookn [kM+k gks x;k gSA**

On the basis of the averments that were made in paras Nos. 2 and 3, according to the decree-holder, a dispute arose relating to the delivery of possession. The learned Munsif by his order dated April 26, 1975. dismissed the application of the decree-holder dated April 16, 1975. Feeling aggrieved, the decree-holder went in appeal and the learned Additional Civil Judge by the impugned order dated October 6, 1976, set aside the order of the Munsif and directed him to issue a fresh warrant for delivery of possession in accordance with law. Hence this appeal by the judgment-debtor.

3. I have heard Mr. N. N. Mathur for the Judgment-debtor-appellant and Mr. N. P. Gupta for the decree-holder-respondent.

4. The only question involved in this appeal is whether the possession of the shop in pursuance of the decree was delivered to the decree-holder or not. In other words, whether the warrant under Order XXI, Rule 35, C. P. C. was executed, in so far as delivery of possession of the shop is concerned. The material portion of Order XXI. Rule 35, C. P. C. is as under:

R. 35. Decree for immoveable property.

(1) Where a decree is for the delivery of any immoveable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.

(2).....

(3) Where possession of any building or enclosure is to be delivered and the person in possession being bound by the decree, does not afford free access, the Court through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.'

5. Under what circumstances, the decree-holder passed the receipt about the delivery of possession may briefly be considered here. In the report, it is recited.

^^Mhxjhnkj dh [okfgl ij igys Nrds Vhu mrkjs tkus ckn fdokM fudkys leku fudkyk tkrk jgk--- ij fMxjhnkj dk dCtk ?kqekfQjk dj fn;k x;k pwfd rkyk yxkus dk njoktk o nhokj ugha jgh A o,yku ekSds ijfd;k x;k fd dCtk fMxhznkj dk djk tkrk gS A rLnhd o jlhn yh tkrh gS A**

6. In para 22 of the report, their Lordships of the Supreme Court in Shew Bur v. Bengal Breweries Ltd., AIR 1961 SC 137 observed as under :--

'Now under Order 21, Rule 35 a person in possession and bound by the decree has to be removed only if necessary, that is to say, if necessary, to give the decree-holder the possession he is entitled to and asks for. It would not be necessary to remove the person in possession if the decree-holder does not want such removal. It is open to the decree-holder to accept delivery of possession under that rule without actual removal of the person in possession. If he does that, then he cannot later say that he has not been given that possession to which he was entitled under the law. This is what happened in this case. The decree-holders in the present case of their own accepted delivery of possession with defendant No. 4 remaining on the premises with their permission. They granted a receipt acknowledging full delivery of possession. They permitted the execution case to be dismissed on September 8, 1949, on the basis that full possession had been delivered to them by defendent No. 4. The fact that they put their guards on the premises as mentioned in the Nazir's return would also show that they had obtained fall possession. It was open to the decree-holders to accept such possession, Having once done so, they are bound to the position that the decree has been fully executed, from which it follows, that it cannot be executed any more'.

Their Lordships approved Jagdish Nath Roy v. Nafar Chandra Parmanik, AIR 1931 Cal 427. In Jagdish Nath Roy's ca.se, in the first instance, the plaintiff obtained symbolical possession. Subsequently, he asked for khas possession, It was held by the Division Bench of the Calcutta High Court that such a course was not permissible under the law. It was observed:

'Had the decree-holder repudiated his Retting only the symbolical possession instead of the khas possession, he would have been perfectly within his rights to come before the executing Court a second time to have his remedy.'

7. Both these decisions were considered by a learned single Judge of this Court in Triveni Bai v. Swaroop Chand 1974 WLN 13 : (AIR 1974 Raj 232), One of the questions that arose before the learned single Judge in Triveni Bai's case, was whether the suit was maintainable under Section 47, C. P. C. It was held that a decree-holder or a decree-holder-auction purchaser as the case may be, to whom the peon of the court erroneously delivers symbolical possession can refuse to accept such possession and ask the executing court to deliver actual possession which he is entitled to, but if he accepts symbolical possession and feels contented with it, he cannot subsequently ask the executing court for delivery of actual possession on the ground that the symbolical possession was erroneously accepted. The reasoning which is applicable in the case of a symbolic possession, as contemplated under Order XXI. Rule 36 is mutatis mutandis applicable to the execution of the warrant for delivery of possession under Order XXI, Rule 35, C.P.C. The decree-holder of his own accord accepted the delivery of possession when the wife and children of the judgment-debtor remained on the Talia of the shop. Having once done so, he is bound by what he has endorsed on the warrant to the effect that he has obtained possession of the shop. In these circumstances, issuing of fresh warrant was rightly refused by the Munsif. Reference in this connection may also be made to Sudhir Kumar Mitra v. Murali Mohan Pyne, ILR (1965) Assam 48. Learned counsel referred to G. Das v. Fatik Chandra. AIR 1957 Assam 123. This decision is of no assistance and is clearly distinguishable. In that case, the decree-holder obtained a decree for delivery of possession and compensation against the judgment-debtor; he levied execution of the decree; he prayed for possession and realisation of the compensation decreed; a writ for delivery of possession was issued in favour of the decree-holder and on one occasion the Nazir purported to give delivery of possession to the decree-holder and submitted a report to that effect. The Court then recorded an order saying that possession had been delivered, and dismissed the execution case. During the pendency of the execution case, the judgment-debtor filed an appeal against the decree under execution, but the appeal was dismissed on the ground that there was no stay of the execution case. Thereafter the decree-holder took out fresh execution of the decree. He prayed for delivery of possession saying that, in fact possession had not been delivered to him of the property in question. The judgment-debtor filed objections to the execution and his main contention was that a second execution case could not be started in view of the earlier report and order in the previous execution case of the entire property as the decree provided and, thus, there was nothing to show that the decree-holder should be debarred from the remedy by way of execution and should be necessarily driven to a separate suit for the purpose of obtaining possession of the property, to which, under the decree, he was entitled. It was observed;

'Even if that were so, the answer to the argument is that if anything had been done by the judgment-debtor to dispossess the decree-holder during the pendency of the appeal, the fact that the appeal was eventually decided in favour of the decree-holder, gave him a fresh right to levy execution on the basis of that decree and if by any act or conduct, the judgment-debtor during the interim period sought to interfere with the possession of the decree-holder or to deprive him of that possession, he did so at his peril, and the matter could be rectified in a fresh execution case on the basis of the appellate court's decree.'

8. Learned counsel appearing for the decree-holder-respondeat contended that on the basis of the circumstances, which are mentioned in the report on the warrant the learned Additional Civil Judge recorded a finding that the learned Munsif has erred when he held that in fact actual possession was delivered to the decree-holder, specially when the wife and the childen were sitting in the shop, is a finding of fact, which should not be interfered with in execution second appeal. I am afraid, this contention cannot be accepted. The decree-holder stated that the possession of the shop has been obtained by him and in pursuance of that he has got the wall in between the rooms demolished. This, in my opinion, does not lead to the conclusion that in fact no actual possession of the shop was taken. In my opinion, the learned Munsif was right when he dismissed the decree-holder's application dated October 16, 1975 for issuing freshi warrant for delivery of possession.

9. The result is that this appeal is allowed and the order of the learned Additional Civil Judge dated October 6, 1976 is set aside and the order of the Munsif dated April 26, 1975 is restored, In the circumstances of the case, there will be no order as to costs.


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