1. The plaintiff obtained a decree for possession of certain land. In execution he applied for delivery of possession under Order 21, Rule 35 and delivery was ordered. The finding is that what was effected was no more than a formal delivery of possession. He waited for nearly 12 years after that and then sued again. The question for decision--the defendant having been in possession both before and after the delivery for a total period of about 20 years--is whether the suit is barred by limitation. The District Munsif decreed the suit, but the District Judge held that it was time-barred, a conclusion in which Devadoss, J., concurred in second appeal. He dissented from Govind v. Venkata Sastrulu (1907) 17 MLJ 598 and followed Govindasami Pillai v. Pethaperumal Chetty 44 INDCAS 839, which, he considered, was binding on him and certain rulings of the Bombay and Allahabad High Courts. The effect of these decisions is this : that, in cases where a decree-holder is bound to apply for actual as opposed to symbolical possession, but obtains only the latter, the delivery of possession is a nullity and does not give rise to a fresh period of limitation.
2. Authority on the question is divided. The High Court of Calcutta has invariably taken a view directly opposed to that of the two Courts above referred to. And so has this High Court since the ruling reported in Kocherlakota Venkatakrishna Row v. Vadrevu Venkappa ILR (1903) M 262 until a contrary opinion was expressed obiter in Govindasami Pillai v. Pethaperumal Chetty (1917) 44 IC 839. The controversy would seem to have been concluded by a ruling of the Privy Council, Thakur Sri Radha Krishna v. Ram Bahadur and Ors. (1917) 34 MLJ 97 which approved Juggobundu Mukerji v. Ram Chinder Bysack (ILR 1880) C 584. It is no doubt true that both of these were cases where the only delivery to which the decree-holders were entitled was symbolical, but their Lordships of the Privy Council laid down a rule of general application to the effect that
symbolical possession availed to dispossess the defendants sufficiently, because they were parties to the proceedings in which it was ordered and given.
3. The Bombay High Court considered this rule in Mahadevappa Dundappa v. Bhima Doddappa ILR (1921) B 710 and expressed the opinion that the view previously taken by that Court might, when the occasion arose, have to be reconsidered. In Jobeda Khatun v. Tulsi (1922) CRILJ 472 the rule laid down by the Privy Council was re-stated and it was followed by Odgers, J. in Ranganatha Aiyar v. Srinivasa Aiyangar : AIR1926Mad42 . In Maharaja Pratap Udai Nath Sahi Deo v. Bhaiain Sunderbans Koer 71 INDCAS 999 Adami, J. of the Patna High Court followed the Calcutta and Madras decisions. Daniels, J. of the Allahabad High Court in Harpal Kurmi v. Mohan Kurmi AIR 1924 A 844 held that in a case, where the warrant
purported to give actual possession, which was the appropriate mode of relief though in the sequel it proved that the procedure adopted was not effective,
there was actual delivery, which was sufficient to interrupt adverse possession. He remarked:
It would be destructive of all respect for law and authority of the Court if it were held that in such cases (i. e., cases in which the judgment-debtor stops away at the time of delivery and quietly resumes possession later) the judgment-debtor can treat the delivery of possession as a nullity and claim to be in adverse possession from the date of his original entry.
4. Only one other case need be referred to Harbhagwan v. Taja AIR 1926 Lah 35 in which Jai Lal, J. held that the delivery of symbolical possession
even erroneously amounts to delivery of actual possession so far as the judgment-debtor and his representatives are concerned.
5. He added
It is obvious that a person who is a party to certain legal proceedings is not entitled to question the legality of the procedure except in the manner authorised by law and that is by appeal--if he allows wrong procedure to be followed without effective protest he must be deemed to have acquiesced in it and therefore to be bound by it. The general principle of estoppel similar to res judicata will apply to a case like this.
6. It is clear that the balance of authority is overwhelmingly in favour of the view that, in a case like this, a judgment-debtor, who is a party to the execution proceedings and is bound by the decree, is not entitled to deny that he was dispossessed, even though he was not actually evicted. We think that the rule laid down by the Privy Council is so worded as to be of general application and that we must follow it. In the result, the L. P. Appeal must be allowed. The decree of the Munsif is restored with costs throughout.