1. This appeal arises out of an order passed by the District Judge of Chittagong on appeal from the lower Court holding that an application for delivery of possession by the decree-holder is a step-in-aid of execution.
2. It appears that in an execution case the decree-holder put up some property to sale out of which 15 Rupees was realized and the execution case was struck off as partly satisfied on the 18th February 1904. The property so sold appears to have been purchased by the decree-holder himself, and he asked by a regular petition to the Court to be placed in possession of the same on the 1st September 1904. He, however, made no further application for execution until 24th June 1907. It is argued that the application for delivery of possession being merely a ministerial act, and the decree-holder having already obtained all the satisfaction that he could obtain out of his first application which had been struck off on the 18th February, the application of the 1st September 1904 cannot help him. There is direct authority for holding the contrary in the case of Sariatoolla Molla v. Raj Kumar Roy 27 C. 709. But it is urged that the decision in Sada Nanda Sarma v. Kali Sankar Bajpai 10 C.W.N. 28 dissents from Moti Lal v. Makund Singh 19 A. 447, upon which the judgment in the case of Sariatoolla Molla v. Raj Kumar Roy 27 C. 709, to which we have just referred, is apparently based. But we find that the judgment in Sada Nanda Sarma v. Kali Sankar Bajpai 10 C.W.N. 28 lays down the true rule which must govern these cases; and as the Chief Justice pointed out in Sariatoolla's case 27 C. 709, each of these decisions depend upon the particular circumstances of the case and the particular nature of the application which was made. Now the rule laid down in Sada Nanda's case 10 C.W.N. 28 is that if the order is judicial and not simply ministerial, it is a step-in-aid of execution, and it was precisely on that ground that the payment out of the money, which had already been ordered by the Court to certain specified persons as rateable distribution of certain sale proceeds, was held not to be a step-in-aid of execution, because it was merely a ministerial act which could be done by the officer of the Court. But in this case we find that the order for delivery of possession was an order under Section 319, C.P.C., and it cannot possibly be urged that an order under Section 319 can be passed or carried out by any person other than the presiding officer of the Court. It requires a judicial order from the Court and it requires the judicial authority of the Court to carry it out in the Mofussil. It is, therefore, clearly a judicial order. We do not attach much importance to the formality of striking off the execution proceedings when part satisfaction is obtained. This is merely done to avoid cases appearing in arrears in the Quarterly Returns. It has no particular judicial value inasmuch as the plaintiff is entitled to go on pursuing his remedy until his decree is satisfied. If he chooses to drop the proceeding altogether, then undoubtedly his application ought to be dismissed.
3. We, therefore, think that in this case the learned Judge was right in holding that the application for delivery of possession was a step-in-aid of execution, and we, accordingly, dismiss this appeal with costs.
4. We assess the hearing fee at two gold Mohurs.