1. This appeal has been preferred by a decree-holder from an order passed by the District Judge of Dinajpur affirming on appeal an order of the Munsif, by which an execution case was dismissed on the objection of the judgment-debtors.
2. A suit for declaration of title and recovery of khas possession was dismissed by the trial Court. On appeal, this decision was reversed and a decree was passed by which it was ordered as follows:
Plaintiffs' title be declared and plaintiffs do get khas possession of the land Defendants do remove the structures within two months From this date; in default they shall be removed in execution of this decree....Plaintiffs do get costs of both the Courts with Interest at 6 pt c. per annum.
3. This appellate decree was passed on 5th October 1923. The defendants thereupon preferred a second appeal to this Court. While this second appeal was pending the decree-holder on 1st, August 1924 applied for execution. In, the prayer column of the tabular statement there was a prayer for khas possession by removal of the judgment-debtors and of the structures standing on the land and also a prayer that the structures be sold and the proceeds credited against the dues under the decree and that the expenses of getting possession by removal of structures be paid out of the sale proceeds and if the said sale proceeds be not sufficient then the balance be realized by attachment and sale of the judgment-debtor's moveables. The application was registered and a writ under Order 21, Rule 35, Civil P. C, was issued fixing 27th August 1924 for its execution and return. The writ was exactly in Form No. 11, Appendix E, to the Code, directing the bailiff to put the decree-holder in possession and authorizing him to remove any person bound by the decree who might refuse to vacate. On 20th August 1924 the peon delivered possession to the agent of the decree-holder by fixing up a bamboo accompanied with the beating of drum and the latter gave a receipt acknowledging, that he had received delivery of possession of that character. On the same lay, as the order shoot shows, the judgment debtor applied to the Court for stay of delivery of possession, but the Court finding that process for delivery of possession had already been issued passed no definite orders but only adjourned the consideration of the application till the process was received back from the Nezarat. On 27th August 1924 the decree-holder put in talabana for issue of processes under Order 21, Rule 30, Civil P. C, as regards the execution of the decree for costs, but raised no objection on the ground of his not having received khas possession in accordance with the terms of the writ and the Court recorded on the order-sheet: 'Possession delivered on the decretal land.'
4. In the meantime, on 25th August 1924, the judgment debtor filed an application in this Court, praying for stay of execution but omitting all reference to what had taken place on the 20th as regards delivery of possession; and on this a rule was issued on 28th August 1924 with an order for interim stay. At the hearing of this rule the decree-holder appeared, but no reference appears to have been made on his behalf either as to what the peon had done on the 20th. All that this Court ordered on the rule was to make it absolute, and, in so far as execution as to possession was concerned, to say that the decree-holder had no objection to the stay of execution as to delivery of possession and that the same should be stayed till the second appeal was disposed of. The second appeal was dismissed on 26th June 1926. On 1st August 1927 the decree-holder made a second application for execution praying for khas possession by removal of the judgment-debtors and also of the structures. The judgment-debtors objected that no such application lay as the decree for possession had been executed before and possession had been already been taken by the decree-holder in that execution. This objection has been upheld by the Courts below. The decree-holder has then preferred the present appeal.
5. It has been contended before us on behalf of the appellant that it is for the Court to enforce its own processes effectively and in a manner contemplated by law and that if the peon in the discharge of his duty delivers only symbolical possession to a decree-holder, who is entitled under the decree to get actual possession, it is the duty of the Court to rectify the error, and that consequently the appellant in the present case was entitled to pub in a second application for execution with the prayers that he did. On the other hand the respondents have contended that, as between the decree-holder and the judgment-debtor symbolical possession taken by the former is equivalent to actual possession so as to make the judgment-debtor a trespasser from the point of time when such symbolical possession is taken, and that therefore a second application for execution by way of delivery of actual possession does not lie, but that the decree-holder's only remedy is by way of a suit.
6. So far as the decisions of the Calcutta; High Court are concerned, they have, unlike the decisions of the Bombay High Court and the later decisions of the Madras High Court, uniformly laid down that where, as here, symbolical possession has been erroneously delivered to a decree-holder as against the judgment-debtor, the decree providing for actual and not symbolical possession, such delivery of possession is not a nullity but being possession obtained through an officer of the Court and process of law and the judgment-debtor being, in the contemplation of law, party thereto, it operates as actual possession as against the latter and his representatives and that from this point, of view a suit for actual possession against the judgment-debtor must be instituted within 12 years from the date in which symbolical possession has been given: Lokeswar v. Purgun  7 Cal. 418, Hari Mohan v. Babur Ali  24 Cal. 715, Bhulu Beg v. Jatindra A.I.R. 1923 Cal. 138. These decisions however do not mean that a decree holder to whom the peon erroneously delivers symbolical possession cannot refuse to take such possession and stand upon his rights to get the kind of possession that the decree has entitled him to. If in the present case the conduct of the decree-holder might be construed as indicating a repudiation on his part of the symbolical possession which the peon had given him or at least as disclosing a desire on his part not to be content at the time with the kind of possession that the peon had given him but to get the khas possession which he was entitled to under the decree and for which he had prayed in his first application for execution, I should be prepared to hold that he was perfectly within his rights to come before the executing Court to have his remedy. But I am unable to put any such meaning on his conduct,
7. I do not lay much stress on the receipt that was given on his behalf, for the receipt may in my opinion, be read as merely reciting what the peon had done. What is more important, in my opinion, is that he never complained before the Court that the writ had not been duly executed. On the returnable date fixed for the writ, i.e., 27th August 1924, it was his duty if he was dissatisfied with what the peon had done, to ask for a fresh and proper execution of the writ by delivery of actual possession. There was appearance on his behalf before the Court on that date, though for a different purpose namely for issue of processes under Order 21, Rule 30, Civil P. C, as already stated. It is true that by virtue of the rule and the interim stay order issued by this Court, there could be no fresh execution on or after 28th August 1924 until the second appeal was disposed of. But his acquiescence in the closure of the proceedings as to possession on 27th August 1921 with the Court's remark in the order sheet that possession had been delivered can lead to only one conclusion namely that symbolical possession was the only kind of possession that he wanted to have at that stage. The peon's action is explicable on no other footing than that the decree-holder's agent, when on the spot, wanted to have nothing more than symbolical possession.
8. It is also noteworthy that the application of 1st August 1927 on which the present proceedings are founded is not a complaint against the peon's act but a. fresh application for execution. 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 executes 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.
9. A number of decisions has been cited before us on behalf of the appellant as-supporting his contention In the case of Robson v Maseyk  3 W.R.( Mis.) 2, a decree-holder who had obtained possession under Section 224. Act 8 of 1859, finding that certain part of the property was in the actual possession of the judgment-debtor applied for possession under Section 223 of the Act, and it was held that such an application was maintainable provided that the terms of the decree warranted such possession being given. Section 223 it may be-mentioned, applied where the land was in the actual possession of the defendant and Section 244 where it was in the possession of ryots. In the case of Adoremonee v. Prem Chand  9 W.R. 454 the plaintiffs had sued for possession against the principal defendants and certain co-defendants in respect of a one-third share of an ejmali family taluk alleging that the co-defendants had fraudulently ousted her from the same; the principal defendants alleged that the taluk was the self acquired property of the co-defendants and that they held it under a putni from the latter; and the Court held that the taluk was ejmali and not self-acquired and gave the plaintiffs a decree for possession. The plaintiff applied and obtained possession of the taluk under Section 224 and thereafter alleging that a more perfect possession was necessary as against the principal defendants in order to nullify certain obstructive acts of theirs applied for possession under Section 223.
10. It was held that assuming for the sake of argument that the plaintiff had already been once put into possession under Section 224 there was no bar to her being put into the more direct and actual possession contemplated by S. 24. In the ease of Banee Mahton v. Gopee Bhagat  12 W.R. 285, the facts as far as they may be gathered were that the plaintiff a reversioner had sued for possession of an eight annas share of a mouza and for setting aside a sale made thereof by a Hindu widow, and got a decree for possession. He received possession under Section 224 and gave a receipt that he had received possession in accordance with the decree. He then made a further application that the defendants refused to give him khas possession of some lands on the ground that they held those lands in ryoti. It was held that an application under Section 223 lay and not a suit. In the case of Hur Kishore Nundy v. Sudoy Chunder  17 W.R. 80, the facts do not appear, but it was held, following the last two Weekly Reporter cases, that the Munsif had jurisdiction to issue an order for khas possession under Section 263, Act 8 of 1859 although in the first instance he had ordered possession under Section 264 of that Act. Now, these decisions are certainly distinguishable from the present case.
11. In the first of these cases the decree was for possession and when ordinarily possession under Section 223 would have been enough it was found on the spot that the judgment-debtor was in actual occupation of a part: in such circumstances it was held to be open to the decree-holder to come before the executing Court to apply for such possession, actual and effective, as he was entitled to under the decree. The facts of this case need not be read as showing that the decree-holder had chosen to take under the first execution something in lieu of or in satisfaction of what the decree entitled him to. As regards the second and the third cases, the decrees were such as could ordinarily be executed by the delivery of symbolical possession, and furthermore it is extremely doubtful if the view taken in those cases as to the rights of the respective parties can be regarded as good law after the Full Bench decision of this Court in the case of Juggobandhu Mukherjee v. Ramchunder Bysack  5 Cal. 584, and the numerous cases which are based on it. The fourth case need not be separately considered. In any event, none of these decisions, in my judgment, need be regarded as an authority for the proposition that where a decree-holder is, under the terms of his decree, entitled to khas possession, he is at liberty to take by way of a first instalment symbolical possession only and thereafter apply for supplementing what he has got by being given actual possession.
12. In the unreported decision of this Court in the case of Khetra Mohan Kundu v. Jogendra Chandra Kundu  45 I.C. 7. and to which our attention has been drawn, no reasons have been given, and, in any event, if what was said by the Court below whose view was affirmed on appeal by this Court, are to be taken as the reasons for the decision, I regret I am unable to agree therein.
13. The result is that, in-my judgment, the second application for execution was not maintainable and in my opinion the remedy of the decree- holder, if any, lies in a suit properly constituted for the purpose.
14. The appeal is dismissed, but in the circumstances of the case I would not make any order as to costs.
15. I agree.