A second execution petition for possession under Order XXI, Rule 35, C.P.C. is not barred if there was no actual physical delivery of possession in the earlier execution petition.

ORDER :- Defendants 2 to 4 are the appellants in the second appeal. The first respondent therein filed O. S. 370 of 1968, on the file of the Court of the District Munsif, Sholinghur, for declaration of his title to the suit property and for possession alleging that he purchased the property from the appellants' father on 5-9-1967. The appellants' father is dead. The appellants resisted the suit contending inter alia that the sale deed has not been executed by them and that the said deed is vitiated by fraud and misrepresentation. The trial court dismissed the suit. On appeal, the lower appellate court decreed the suit. Aggrieved by the said decision of the lower appellate court, defendants 2 to 4 have come up in second appeal.

2. Along with the second appeal, the appellants filed C. M. P. 3428 of 1973 for grant of interim stay alleging that they are in possession of the suit property and that in order to protect their possession stay of the operation of the decree of the lower appellate court has to be granted. This court granted interim stay on 27-3-1973 while admitting the second appeal.

3. The respondent in the second appeal filed C. M. P. 4849 of 1973 for vacating the interim stay on the ground that he has taken possession of the property as early as on 13-3-1973 in E. P. 150 of 1973 pursuant to the decree of the lower appellate court and that there was nothing to be stayed. In reply to this allegation, the appellants have filed an affidavit stating that there is no actual physical delivery of the suit property, that the appellants only are in possession of the property and that the executing court has not recorded the 'delivery' as yet.

4. Thiru Vanchinathan, the learned counsel appearing for the appellants (petitioners in the stay petition) submitted that a report may be called for from the trial court as to who is in actual possession of the suit property. He also submitted that his clients are in possession continuously and that so far they have not been dispossessed from the suit property.

5. Thiru Nainar Sundaram, the learned counsel appearing for the respondents (respondent in the stay petition) relied upon the delivery athakshi and stated that much earlier to the order of stay granted by this court delivery had been effected through court to his client. He also submitted that once the decree has been executed, this court cannot put the appellants back in possession and that that may cause prejudice and loss to the respondent inasmuch as he cannot once over execute the decree which has been already executed in full.

6. Taking into consideration the representation made by the appellants and also the fact that they were, and also continue to be, in possession as alleged by them, throughout, I am inclined to call for a report from the trial court as to who is in actual possession of the suit property. Meanwhile, I also like to maintain the status quo as on date.

7. Calling for a report from the trial Court, when especially there is a delivery athakshi is not warranted in every case where the stay petitioners allege that they are in actual possession and that the delivery is only a paper delivery. But, in appropriate cases, where the party seems to be in possession throughout and has also obtained an interim stay from court, and the time-lag between the alleged delivery and the grant of stay is short, and the court, on relevant facts, feels that an enquiry is necessary to find out who is in actual possession, I do not think the court is barred to have a report from the trial court in the interests of justice.

8. Nevertheless, it is necessary to examine the submission made by Thiru Nainar Sundaram appearing for the respondent to the effect that such an enquiry will bar subsequent execution petition that might be filed by the respondent.

9. Order XXI, Rule 95(1), C.P.C. deals with delivery of property in occupation of judgement-debtor. It contemplates actual physical delivery after removing any person who refuses to vacate the s

Click Here to Read the rest of this document