A decree-holder who accepts delivery of possession of a property without actual removal of the person in possession is bound by his acceptance and cannot subsequently apply for a fresh warrant for delivery of possession.

S. K. MAL LODHA, J.

( 1 ) THIS second appeal by the judgment-debtor is directed against the order dated October 6. 1976 of the learned Additional Civil Judge. Udaipur, by which he set aside the order of the Munsif, Udaipur dated April 26, 1976.

( 2 ) A few facts may be recounted here; The decree-holder-respondent obtained a decree for possession of the shop situate in Mochi Vada, Udaipur on May 11, 1971. The decree, passed by the Munsif, Udaipur reads as under;

"the plaintiffs suit No. 150/69 is therefore decreed with cost who shall be entitled to the vacant possession of the shop and the rent due Rs. 612/- and damages @ Rs. 17/- per month for the use and occupation till a vacant possession is delivered to him has already paid (? ). The defendant is however allowed 6 months time to vacate the shop and deliver its possession to the plaintiff",

On appeal, the learned Civil Judge modified the decree in so far as the plaintiff-landlord was held not entitled to recover Rs. 612 from the defendant-tenant, which has already been paid, The execution was levied by the decree-holder on january 17. 1973. warrant under Order XXI, Rule 35, C. P. C. dated March 10, 1973 was issued. In the warrant, the following is mentioned:. . (VERNACULAR MATTER OMMITED ). . On April 16, 1975, an application was moved on behalf of the decree-holder for issuance of a fresh warrant for delivery of possession. It will be pertinent to quote the following from the application, which was filed by the decree-holder :. . (VERNACULAR MATTER OMMITED ). . On the basis of the averments that were made in paras Nos. 2 and 3, according to the decree-holder, a dispute arose relating to the delivery of possession. The learned Munsif by his order dated April 26, 1975. dismissed the application of the decree-holder dated April 16, 1975. Feeling aggrieved, the decree-holder went in appeal and the learned Additional Civil Judge by the impugned order dated October 6, 1976, set aside the order of the Munsif and directed him to issue a fresh warrant for delivery of possession in accordance with law. Hence this appeal by the judgment-debtor.

( 3 ) I have heard Mr. N. N. Mathur for the Judgment-debtor-appellant and Mr. N. P. Gupta for the decree-holder-respondent.

( 4 ) THE only question involved in this appeal is whether the possession of the shop in pursuance of the decree was delivered to the decree-holder or not. In other words, whether the warrant under Order XXI, Rule 35, C. P. C. was executed, in so far as delivery of possession of the shop is concerned. The material portion of Order XXI. Rule 35, C. P. C. is as under: r. 35. Decree for immoveable property.

(1) Where a decree is for the delivery of any immoveable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. (2 ). . . . .

(3) Where possession of any building or enclosure is to be delivered and the person in possession being bound by the decree, does not afford free access, the Court through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession. "

( 5 ) UNDER what circumstances, the decree-holder passed the receipt about the delivery of possession may briefly be considered here. In the report, it is recited. . . (VERNACULAR MATTER OMMITED ). .

( 6 ) IN para 22 of the report, their Lordships of the Supreme Court in Shew Bur v. Bengal Breweries Ltd. , AIR 1961 SC 137 observed as under :--

"now under Order 21, Rule 35 a person in possession and bound by the decree has to be removed only if necessary, that is to say, if necessary, to give the decree-holder the possession he is entitled