1. The appellant is a purchaser pendente lite of the mortgagor's right in the hypotheca. The mortgagee obtained a decree, and apparently without knowledge of the transfer to the appellant, the second defendant executed, the decree against the judgment-debtor and obtained symbolical delivery of the property. He filed the present suit for possession just twelve years after he had obtained symbolical delivery. The question is whether the suit is in time, in view of the circumstances that the second defendant was in possession before the decree-holder obtained symbolical delivery. Both the Courts below held that the suit was in time.
2. It has been argued here as a question of fact that symbolical delivery was not regularly given, but it appears from the judgment of the lower appellate Court that the arguments there proceeded on the basis that it was. This second appeal must therefore be disposed of on that basis.
3. The symbolical delivery amounted to a momentary interruption of the enjoyment not only of the judgment-debtor, but of the second defendant, who claims through him. I should not have thought that this matter permitted of any doubt, but for the fact that a Bench of the Allahabad High Court in Narain Das v. Lalta Prasad I.L.R.(1899)All. 269, thought that symbolical delivery would interrupt only the possession of the judgment-debtor and not of those claiming through him. The learned Judges said:
Had the judgment-debtor been in possession, the delivery of formal possession, whether under Section 318 or 319 of the Code of Civil Procedure, would have amounted to an ouster of the judgment-debtor and an entry into possession by the purchaser. If subsequently to this delivery of possession the judgment-debtor remained in possession, his possession would amount to an ouster of the purchaser and would be adverse possession from the date of the ouster; but in the caee of a third person who had already purchased the property and obtained actual possession, delivery of possession, as against the judgment-debtor alone, cannot amount to an ouster of the person in possession.
Although this statement, as far as it goes, seems unexceptionable, it is difficult to see how the possession of a person who claims through the judgment-debtor is in any way superior to the possession that the judgment-debtor would have had. If the third party is a stranger, then the correctness of what the learned Judges have said has been accepted by all the High Courts. Except in Narain Das v. Lalta Prasad I.L.R.(1899)All. 269 and later decisions of the same High Court, the principle laid down by the Privy Council in Thakur Sri Radhakrishna v. Ram Bahadur (1917) 34 M.L.J. 97, viz., that symbolical delivery momentarily interrupts the possession of the judgment-debtor, has been applied equally to those who derive through him. The matter was considered in Ram Prasad Obja v. Bakshi Bindeswar Prasad Sinha I.L.R.(1931)Pat. 165, where Narain Das v. Lalta Prasad I.L.R.(1899)All. 269., was dissented from. The decision in Ram Prasad Obja v. Bakshi Bindeswar Prasad Sinha I.L.R.(1931)Pat. 165 has ever since been followed consistently by the Patna High Court, the last case being Krishna Prasad v. Adayanath Chatak A.I.R. 1944 Pat. 775. The Lahore High Court holds a similar view, as can be seen from Harbagwan v. Taja A.I.R. 1926 Lah. 35 and Mahomed Saadat Ali Khan v. Punjab National Bank, Ltd., Lahore I.L.R.(1940)Lah. 428. The Calcutta High Court, too, has consistently held the same view and dissented from Narain Das v. Lalta Prasad I.L.R.(1899)All. 269. The matter has not yet apparently come before the Bombay High Court for decision. Prior to Thakur Sri Radhakrishna v. Ram Bahadur (1917) 34 M.L.J. 97 that High Court was of the opinion that symbolical delivery in no case interrupted adverse possession; but recently, the learned Judges of that Court have pointed out the necessity for reconsidering the earlier Bombay decision in the light of Thakur Sri Radhakrishna v. Ram Bahadur (1917) 34 M.L.J. 97 The matter has not come directly before this Court; but in Kamayya v. Mahalakshmi : (1927)53MLJ339 , a Bench of this Court interpreted and clarified the decision in Thakur Sri Radhakrishna v. Ram Bahadur (1917) 34 M.L.J. 97 which overruled a decision of Devadoss, J., based on the Bombay and Allahabad decisions and dissenting from the Patna cases. The learned Judges referred to the Patna and Calcutta decisions and agreed with them. Because of this preponderance of judicial opinion in favour of the view that a person who claims through a judgment-debtor is in no better position than a judgment-debtor himself, and in consonance with the general reasoning adopted in Kamayya v. Mahalakshmi : (1927)53MLJ339 , I must agree with the Courts below that the suit was not barred by time.
5. This second appeal is dismissed with costs.