The interpretation of legal provisions, including Section 58(c) of the Transfer of Property Act, 1882, and relevant case law, influenced the court's decision to grant the appellants actual physical possession of the property.

S. K. SHARMA, J.

( 1 ) INSTANT appeal impugns the judgment dated November 15, 1983 of additional District Judge No. 2, Jaipur City, Jaipur in Execution Case No. 8/1983 (28/1981) whereby learned executing Court observed that the appellants were not entitled to actual physical possession of the property in question, however they could get symbolic possession.

( 2 ) CONTEXTUAL facts depict that vide decree dated December 20, 1980 learned District Judge Jaipur City issued directions in favour of the appellants and against respondent No. 13 to the effect that on depositing by appellants Rs. 4s999/- within two months of the date of decree a sale deed would be executed by respondent No. 13 in favour of appellants and possession of the property would be handed over to the appellants. Pursuant to the directions, the appellants deposited the amount. Since, respondent No. 13 avoided to execute the sale deed, it was executed and got registered by the Court. The appellants thereafter filed execution petition seeking possession of the property in question. When Nazir, proceeded to execute the decree the respondents No. 1 to 12 and 4 others resisted the delivery of possession. Upon the report of Nazir, notices were issued to the obstructors, who jointly filed their objections. Learned Executing Court recorded evidence and decided objections as indicated above.

( 3 ) I have pondered over the rival submissions.

( 4 ) A close look at the material on record demonstrates that Nazir went to the site and submitted his report on July 15, 1981. Thereafter the executing Court issued notices to 19 obstructors. Only 14 obstructors filed objections. Out of them five had handed over possession, but nine persons (Respondents No. 1, 3, 4, 5, 7, 9, 10 and 12) locked the premises. All these respondents do not appear to reside in the premises. From the perusal of document Ex. P-1, it is evident on the face of it that it clearly purports to be a mortgage by conditional sale. There is nothing in the deed (Ext. 1) that warrants the conclusion that the mortgagee could induct tenants who would continue beyond the term of the existence of the mortgage or who would be given rights even after the expiry of the mortgage.

( 5 ) LEARNED District Judge Jaipur City in the decree dated December 20, 1980 issued directions to the mortgagee to deliver actual physical possession and the executing Court could not have gone behind the decree by interpreting the word possession as symbolic possession.

( 6 ) CASE law cited on behalf of the respondents is distinguishable. Ratio indicated in chunchun Jha v. Ebadat Ali AIR 1954 SC 345, Bhaskar v. Narain AIR 1960 sc 301 and Vidhyadhar v. Mankikrao AIR 1999 SC 1441 does not help the respondents on the contrary it fully supports the case of the appellants. Their Lordships of the Supreme Court in these cases interpreted Section 58 (c) of the Transfer of Property Act, 1882. Mushir Mohammed Khan v. Sajida Bano AIR 2000 SC 1085 was not the case related to one composite document. It was a case of three documents viz. Sale deed, Agreement of recovenyance and Rent note. In Tamboli Raman Lal Moti Lal v. Ghanchi Chiman Lal Keshavlal AIR 1992 SC 1236, there was no relationship of debtor and creditor between the parties as is existed in the instant case. Dev Raj Dogra v. Cyan Chand Jain AIR 1981 SC 981 was the case related to mortgagors tenants. The question in the case reported in AIR 1997 sc 208 was as to whether the mortgagee became tenant under the provisions of kerala Land Reforms Act. Hence in the facts and circumstances of the case no physical possession was handed over on redemption. In Sahadu Bala Botre v. Namdeo Bapuji AIR 1996 SC 1658. Landlord was mortgagor and the tenant was mortgagee hence it was held that on redemption tenancy rights sprang up and the tenant could not be dispossessed physically. In Mangru v. Taraknathji AIR 1967 SC 1390 the question was whether mortgagor in possession had power to leave the mortgage prop