1. Defendants 2 to 4 are the appellants in the second appeal. The first respondent therein filed O. S. 370 of 1968, on the file of the Court of the District Munsif, Sholinghur, for declaration of his title to the suit property and for possession alleging that he purchased the property from the appellants' father on 5-9-1967. The appellants' father is dead. The appellants resisted the suit contending inter alia that the sale deed has not been executed by them and that the said deed is vitiated by fraud and misrepresentation. The trial court dismissed the suit. On appeal, the lower appellate court decreed the suit. Aggrieved by the said defendants 2 to 4 have come up in second appeal.
2. Along with second appeal, the appellants filed C. M. P. 3428 of 1973 for grant of interim stay alleging that they are in possession of the suit property and that in order to protect their possession stay of the operation of the decree of the lower appellate court has to be granted. This court granted interim stay on 27-3-1973 while admitting the second appeal.
3. The respondent in the second appeal filed C. M. P. 4849 of 1973 for vacating the interim stay on the ground that he has taken possession of the property as early as on 13-3-1973 in E. P. 150 of 1973 pursuant to the decree of the lower appellate court and that there was nothing to be stayed. In reply to this allegation, the appellants have filed an affidavit stating that there is no actual physical delivery of the suit property, that the appellants only are in possession of the property and that the executing court has not recorded the 'delivery' as yet.
4. Thiru Vanchinathan, the learned counsel appearing for the appellants (petitioners in the stay petition) submitted that a report may be called for from the trial court as to who is in actual possession of the suit property. He also submitted that his clients are in possession continuously and that so far they have not been dispossessed from the suit property.
5. Thiru Nainar Sundaram, the learned counsel appearing for the respondents (respondent in the stay petition) relied upon the delivery athakshi and stated that much earlier to the order of stay granted by this court delivery had been effected through court to his client. He also submitted that once the decree has been executed, this court cannot put the appellants back in possession and that that may cause prejudice and loss to the respondent inasmuch as he cannot once over execute the decree which has been already executed in full.
6. Taking into consideration the representation made by the appellants and also the fact that they were, and also continue to be, in possession as alleged by them, throughout, I am inclined to call for a report from the trial court as to who is in actual possession of the suit property. Meanwhile, I also like to maintain the status quo as on date.
7. Calling for a report from the trial Court, when especially there is a delivery athakshi is not warranted in every case where the stay petitioners allege that they are in actual possession and that the delivery is only a paper delivery. But, in appropriate cases, where the party seems to be in possession throughout and has also obtained an interim stay from court, and the time-lag between the alleged delivery and the grant of stay is short, and the court, on relevant facts, feels that an enquiry is necessary to find out who is in actual possession, I do not think the court is barred to have a report from the trial court in the interests of justice.
8. Nevertheless, it is necessary to examine the submission made by Thiru Nainar Sundaram appearing for the respondent to the effect that such an enquiry will bar subsequent execution petition that might be filed by the respondent.
9. Order XXI, Rule 95 (1), C.P.C. deals with delivery of property in occupation of judgment-debtor. It contemplates actual physical delivery after removing any person who refuses to vacate the same.
10. Thiru Nainar Sundaram first cited the decision in Gopaldas v. Thansingh, (1882) ILR 4 All 184. That was a case in which the plaintiff-appellant got possession of the property as per law; subsequent to that possession, the defendant entered into possession and cultivated the lands, and the subsequent execution petition by the plaintiff, who originally filed the suit for possession, was rejected on the ground that the order of execution was complete as early as 7-3-1877. Thus, it was a clear case wherein possession had been handed over legally and actually and subsequent to that possession the defendants have taken possession of the property. In such circumstances, there is no difficulty in upholding the principle that no second execution will lie after the satisfaction of the decree entered completely in the prior execution petition. In such cases, a suit alone will lie. Correctly the Bench of the Allahabad High Court has decided so; and I do not think that the said facts are present in the present case. Here, the contention of the appellants is that the decree has not been executed and that the alleged delivery of possession by way of execution is only a paper delivery, and not actual physical delivery. In such a case, it cannot be said that the decree has been executed in full until the court satisfies itself that there has been a real actual physical delivery in execution of the decree as claimed by the decree-holder.
11. The decisions cited by Thiru Nainar Sundaram, such as Thandavaraya Mudali v. Subramania Gurukkal, AIR 1916 Mad 930 and Chokkalinga v. Gopalathathachariar, AIR 1917 Mad 202, clearly hold that a decree-holder is not entitled to file a second execution petition for possession under Order XXI, Rule 35, C.P.C. after he has been put in possession in accordance with an order passed in an application under the same Order and Rule. These decisions also follow ILR (1882) All 184. It is clear from the above decisions that once it is found that there is no actual possession given in accordance with an order passed on an application under Order XXI, Rule 35, C.P.C. there cannot be any finality in the execution proceedings and as such a subsequent application is maintainable for execution of the decree.
12. The decision reported in Theevana Pillai v. Kulla Pillai, (1910) 7 MLT 107 is a case where the plaintiff got a decree for possession in execution. Subsequently the defendants took possession but without applying for execution. On second appeal, the original decree was confirmed. The question was whether the plaintiff was entitled to execute the final decree to get possession of the land. The court held--
'If the defendants had taken possession by process of execution there can be no doubt that the plaintiff could have got possession in execution under the provisions of Section 583, C.P.C. We do not think the plaintiffs should be put in worse position, because the defendants took possession without the intervention of the court and in defiance of an order of the court staying execution.'
On the above observations, the second execution petition was found to be in order.
13. In Venkatalakshmi v. Sadasiva Iyer, AIR 1924 Mad 200, a Bench of this court held--
'Even where decree-holder has got possession in execution of the original decree if subsequently he was wrongly dispossessed before the final decree of the appellate Court restored the original decree of the Court restored the original decree of the District Munsif he would be entitled to apply for delivery of possession a second time.
In Kunhanu v. Mammu Beary, 1962 KLT 764, it has been specifically observed by Raman Nayar, J. that-
'The question whether in cases where the delivery is only symbolical or has proved ineffective, a second order for delivery will lie does not arise in this case, the delivery made being admittedly actual and effective, and it is not necessary to notice the conflict of authority on this point.'
In the present case, the main question is whether actual delivery has been effected or not. Hence I do not think that the decision in the said case can be quoted as authority applicable to the present case. Apart from that, the learned Judge has also observed thus--
'Unless the appellate court has expressly taken cognisance of a subsequent event and given relief in respect of it, its decree can, after all, relate only to a cause of action in existence at the time of the institution of the suit. It is not the case that in this particular case the appellate court took note of the subsequent dispossession and granted relief in respect of it, and hence its decree can relate only to the dispossession before the suit in respect of which the decree had already been executed.'
As far as the present case is concerned, the very question whether possession has been actually handed over in execution petition as alleged, is being agitated now. As such, any conclusion made subsequent to the calling for of the report from the trial court will be binding upon the parties and in case it is found that actual possession has not been given in the said execution petition, there is no question of any bar for a subsequent execution petition, which in my opinion, cannot be termed as a 'second' execution petition.
14. Thiru Nainar Sundaram, the learned counsel appearing for the respondent, cited Shew Bux Mohata v. Bengal Breweries Ltd. : 1SCR680 wherein the Supreme Court has observed as follows:--
'It is true that the Nazir's return showed that defendant No.4 had not been bodily removed. But the same return also shows that it had not been so removed because of certain arrangement arrived at between it and the decree-holders and as the decree-holders had not required the removal of defendant No. 4 from the premises. 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 8-9-1949, on the basis that full possession had been delivered to them by defendant 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 full possession. It was open to the decree-holders to accept such possession. Having 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. In the case of Maharaja Jagadish Nath Roy v. Nafar Chandra Parmanik : AIR1931Cal427 , and exactly similar thing had happened and it was held that the decree was not capable of further execution, it was there said at page 15--
'The case, therefore, seems to me to be one of those cases in which a decree-holder having armed himself with a decree for khas possession executed that decree in the first instance by obtaining symbolical possession only with some ulterior object of his own, and thereafter subsequently and as a second instalment asks for khas possession. The question is whether such a course is permissible under the law. I am of opinion that it is not.'
We entirely agree with the view that was there expressed.'
15. From the above stated Supreme Court decision it is clear that if the decree-holder is satisfied with alleged delivery of possession, whether physical or symbolical, he cannot on a subsequent date ask for actual possession by filing a second execution petition; subsequent execution petition can be entertained only in cases where there was no legal, complete and effective delivery of possession on the earlier occasion.
16. To the same effect are the decisions in Radhalal v. Chabilchand AIR 1955 Nag 79, Jaimal Singh v. Rakha Singh , Ramaganesan v. Rajah Ayyar : AIR1964Mad53 , and Manikayala Rao v. Narhsimhaswami : 1SCR628 . In Ghanshyam v. Fatik Chandra AIR 1957 Ass 123, it has been held that if the fact was that actual delivery of possession was not obtained by the decree-holder in the previous execution case there was no justification for holding that the decree-holder be deprived of his right to come before the executing court and pray for a fresh delivery of possession when there was no other bar to his right of executing the decree.
17. Thus it is clear from the aforesaid decision that whatever may be the conflict between some decisions regarding filing an execution petition for a second time after the decree for possession has been satisfied, one thing is certain that if on the previous occasion there was no legal, complete or effective delivery, a second execution petition was not a bar. As far as the present case is concerned, the judgment-debtors (appellants) themselves accept the fact that there was no actual physical delivery given to the decree-holder. They have come forward with a specific case that the alleged handing over of actual possession is not true and that as a matter of fact they are in possession of the property. The only persons who could object to a second execution petition if filed, on the basis that the decree has already been satisfied, themselves state that there was no legal, complete or effective delivery of the property. In these circumstances, there is absolutely no substance in the argument that a subsequent execution petition will be objected to as a bar as if it will be a second execution petition filed after the decree has been satisfied.
18. As regards the handing over of actual possession, the facts of the case make it necessary to call for a finding from the trial court as to who exactly is in actual possession of the property as on date. In the interests of justice and also to safeguard the possession of that party who is in actual possession as on date, it is necessary to get a finding from the trial court as regards the possession.
19. In these circumstances, observing that the status quo as on date be maintained, I direct that the trial court will submit a finding as to who is in actual possession of the property, within a month from this date. The office is directed to send necessary papers to the trial court for recording a finding. Case remanded.
20. Order accordingly.