A decree-holder has the right to file an application for execution of a decree from the date of the judgment, which is the date of the decree, even if the decree has not been formally drawn up and signed.

Rai, J.

1. This appeal by the judgment-debtors is directed against the order dated 29-11-1951 passed by Mr. C.M. Prasad, Additional Subordinate Judge, fifth Court of Patna.

2. In order to appreciate the points raised at the bar it is necessary to give some relevant facts of the litigation out of which the present appeal arises. The decree-holders-respondents filed Title Suit No. 127/6 of 1949/1951 for declaration of their title to and recovery of possession of 32.84 acres; of land appertaining to khata No. 584 in village Daxilatpore Basa-wanbigha bearing tauzi No. 964 of the Patna Collectorate. The plaintiffs claimed the land as their bakasht while the defts. claimed different areas out of the area in dispute as the lands settled with them for cultivation from time to time of which they were entitled to remain in possession.

3. The trial Court decreed the suit holding that the lands in dispute were really the bakasht lands of the plaintiffs and the defendants had acquired no right to remain in possession of the same. The relevant portion of the judgment of the trial Court dated 27-11-51 ran as follows:

"The whole case of the defendants regarding settlement, possession and grant of receipts is so full of material discrepancies and glaring contradictions that it cannot be accepted for a moment. I have no hesitation in holding that the purja receipts, Exts. C series, were fabricated at the instance of the tenant-defendants for the purpose of this litigation. The evidence on the record proves that with the advent of the new Bakasht law there was a ferment in the tenant world and they were imbued with the idea of grabbing the Bakasht lands of the landlords."

4. The order portion of the judgment ran thus:

"Hence, it is ordered that the suit be decreed on contest against defendants 1 to 17 and ex parte against the rest with costs payable by the contesting defendants. Pleaders fee at 10 per cent."

5. On 28-11-1951, the decree-holders filed a petition for execution without a copy of the decree which had not been formally drawn up by then. On this application Execution Case No. 19 of 1951, of the Court of the Additional Subordinate Judge, fifth Court of Patna was started. In their application the decree-holders had given reasons for immediate delivery of possession to them. The application was considered on 29-11-1951 on which date the following order was passed by the executing Court:

"Issue delivery of possession as prayed returnable by 5-12-1051. I am satisfied for the reason stated in the petition supported by an affidavit that the issue of notice under Order 21, Rule 22 be dispensed with."

6. The delivery of possession was given on 30-11-1951. The decree was, however, subsequently drawn up and it was actually signed on 5-12-1951.

7. Mr. Girjanandan Prasad for the judgment-debtors-appellants contended that no execution was maintainable until the decree had been prepared and signed. He submitted that the executing Court had no jurisdiction to pass an order on 29-11-1951 for issue of writ for delivery of possession. According to his submission, until the decree was drawn up, nobody had either any right of appeal or any right of levying execution. In this connection he referred to the provisions of Order 41, Rule 1(1), Civil P. C. which runs thus:

"Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the appellate Court dispenses therewith) of the judgment on which it is founded."

8. The learned advocate for the appellants further contended that his clients could not have appealed until after 5-12-1951 when the decree was signed. But before such right had accrued in their favour the lands in their possession were taken away from them by the delivery of possession on 30-11-1951. This, according to him, was highly unjust. In