Judgment

SARKAR, J. : This appeal arises out of an execution proceedings. It is filed by the decree-holders and is directed against the judgment of the High Court at Calcutta setting aside the order of a learned Subordinate Judge at Alipore dismissing the objection of a judgment-debtor to the execution. The High Court held that the decree having earlier been executed in full, the present proceedings for its execution were incompetent and thereupon dismissed the decree-holders petition for execution. The question that arises is whether the decree had earlier been executed in full.

2. The facts appear to have been as follows: -One Sukeshwari died some-time prior to 1944 possessed of three plots of land which at all material times, bore premises Nos. 26, 27 and 28, Dum Dum, Cossipore Road, in the outskirts of Calcutta. She left a will of which defendants Nos. 1, 2 and 6 were the executors. The executors granted leases of these different plots of land to defendants Nos. 3, 4 and 5 respectively and put them in possession.

3. Certain persons called Mohatas whose interests are represented by the appellants in the present appeal, claimed that Sukeshwari had only a life interest in the lands which on her death had vested in them and the executors had therefore no right to grant the leases. They filed a suit against the executors and the tenants on September 15, 1954, in the Court of a Subordinate Judge at Alipore for a decree declaring that the defendants had no right to possess the lands and for khas possession by evicting the defendants from the lands by removing the structures, if any, put up by them there. On March 30, 1948, the learned Subordinate Judge passed a decree for khas possession in favour of the Mohatas and gave the defendants six months time to remove the structures put up on the land. It is the execution of this decree with which the appeal is concerned.

4. Defendant No. 3 appealed from this decree and that appeal succeeded for reasons which do not appear on the record. It is not necessary to refer to defendant No. 3 further as we are not concerned in this appeal with him. It may however be stated that he was in possession of premises No. 26 and no application for execution appears to have been made against him.

5. The executor defendants also appealed from the decree. The other two tenants, defendants Nos. 4 and 5, did not appeal. Of these tenants we are concerned only with defendant No. 4, the Bengal Breweries Ltd., a company carrying on business as distillers. It was in possession of premises No. 27, on which it had built a factory for distilling liquor and yeast. Defendant No. 5 was in possession of premises No. 28 on which stood some temples.

6. On September 22, 1948, the Mohatas, the decree-holders, filed an application in the Court of the learned Subordinate Judge for execution of the decree against defendants Nos. 1, 2, 4, 5 and 6. On September 25, the learned Subordinate Judge passed an order in execution issuing a writ for delivery of possession of premises Nos. 27 and 28 to the decree-holders by removing any person bound by the decree who refused to vacate the same and fixed November 22, for making the return to the writ. On September 28, the decree-holders applied to the learned Subordinate Judge for obtaining help from the police for executing the decree. On September, 29, the executor defendants applied for a short stay of execution to enable them to obtain a stay order from the High Court. Defendant No. 4 also itself made an application for staying the execution for two months to enable it to come to an arrangement with the decree-holders in the meantime. On the decree-holders assuring the Court that they would not execute the decree till 2 p.m. of the next day these two petitions by the judgment-debtors were adjourned till September 30.

7. On September 30, 1948, the two petitions for stay were taken up for hearing by the learned Subordinate Judge. With regard to the petition by the executor defendants, he ob