( 1 ) THE facts out of which this appeal arises can be briefly stated as follows:-In a redemption suit by a mortgagor against the two mortgagees the appellant who was a tenant of the mortgagees was also joined as party but he did not file a written statement. A preliminary decree was passed by consent between the mortgagor and the mortgagees. In the final decree it was ordered that possession should be delivered to the mortgagor.

( 2 ) IN the execution of that decree the appellant who was a tenant of the mortgagees gave an application praying to the Court that actual possession should not be given but only symbolical possession. In para 2 of his application he has stated as follows :the plaintiff and defendants Nos. 1 and 2 have compromised the matter on 21 January 1956. I was not a party to that. I am tenant of defendants Nos. 1 and 2. So actual possession cannot legally be taken from me. But symbolical possession can be taken as provided in Order XXI Rule 36. So I submit that fact to Your Honour and I submit that I will also declare my objection when Nazir will come for taking actual possession from me. So it may be ordered that actual possession may not be handed over to him. So his case was that he was a tenant of defendants Nos. 1 and 2

( 3 ) THE mortgagees and that he was not a party to the compromise between the plaintiff and the mortgagess. He therefore prayed that symbolical possession should be given to the plaintiff under Order 21 Rule 36 C. P. Code. The learned Sub Judge Bhuj who heard the application passed an order for symbolical possession holding that symbolical possession should be delivered under Order 21 Rule 36 and under Order 21 Rule 96 C. P. Code. In appeal the learned District Judge kutch ordered that actual possession should be delivered and not symbolical possession. The immovable property in question was a shop. Order 21 Rule 36 C. P. Code reads a follows :

( 4 ) WHERE a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place the substance of the decree in regard to the property.

( 5 ) ORDER 21 Rule 96 C. P. Code reads as follows:-WHERE the property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under rule 94 the Court shall on the application of the purchaser order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place that the interest of the judgmentdebtor has been transferred to the purchaser.

( 6 ) IT is clear that Order 21 Rule 96. P. Code has no application because it relates to delivery on the property which has been sold by a Court.

( 7 ) BUT Order 21 Rule 3 clearly applies to the facts of the instant case because this is a case where there is a decree for the delivery of possession and the property namely the shop is in possession of a tenant. The learned counsel for the respondent contends that the tenant is bound by the decree because he was a party to the suit and the decree was passed against him. But the decree was by compromise. Under the Civil Procedure Code after hearing a decree can be passed under Order 20 Rule 3 C. P. Code. Order 20 Rule 3 C. P. Code reads as under :the judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and when once signed shall not afterwards be alired or added to save as provided by sec. 152 or on review.

( 8 ) BUT the instant case does not fall under that rule because the suit which was between the plaintiff and the three defendants was co