A purchaser of an undivided share in execution sale is not entitled to joint or symbolic possession of the entire property. His remedy is to sue for partition.

1. The second defendant in O.S. No. 84 of 1974 originally on the file of the Additional Subordinate Judge, Chengalpattu, now on the file of the District Munsif, Poonamallee, is the petitioner. The respondent is the plaintiff in the suit. The plaintiff laid the suit for specific performance of an agreement of sale against one Chockalinga Naieker arrayed as the first defendant who is none else than the brother of the second defendant, the petitioner herein. The trial court did not count enance the prayer for specific performance, but only granted a money decree creating a charge on 2/3 share of the suit property which is a house.

2. The decree was executed and the 2/3 share in the suit house was sold and it was purchased by the plaintiff himself. The plaintiff sought delivery of the property purchased and it is admitted that he took delivery of the entire house. Obviously, this was not in order. The second defendant took out an application for delivery of 1/3 share in the suit house and that was ordered. Complaining that instead of taking symbolic delivery of 1/3 share of the suit house, possession of the entire suit house has been taken, the plaintiff filed E.A. 1487 of 1982 for directing the second defendant to redeliver 2/3 portion of the suit house. The matter was contested by the second defendant. However, the court below directed that the suit house should be divided and the 2/3 share should be allotted to the plaintiff and gave liberty to the plaintiff to make the requisite application for appointment of a Commissioner in this behallf. The present revision is directed against the orders of the court below.

3. Mr. T.V. Ramanujam, learned counsel for the second defendant, would submit that the plaintiff is a decree holder purchaser of only a 2/3 share in the suit house and it is not permissible in law in execution to obtain either actual or symbolical delivery of this 2/3 share in the suit house. In support of this submission learned counsel relies on the ratio of a Full Bench of the Court in Ramaganesan Pillai v. Raja Aiyar 1.

4. As against the above submission, Mr. V. Krishnan, learned counsel for the plaintiff would submit that the second defendant earlier only wanted to take back symbolic delivery of 1/3 share in the suit house and instead of doing that he has taken possession of the entirety of the suit house and hence, the present application taken out by the plaintiff for delivery of 2/3 share could be accorded at least recording delivery of 2/3 share of the suit house in favour of the plaintiff.

5. The law on the subject does not permit countenancing the plea put forth on behalf of the plaintiff. The sale in favour of the plaintiff decree holder is only of an undivided 2/3 share in the suit house. This is not in dispute. Under the Code of Civil Procedure, hereinafter referred to as the Code, in respect of a purchase of an undivided share, in execution there is no provision which enables such a purchaser, be he so an independent court auction purchaser or decree holder purchaser to apply for and obtain either joint possession or symbolic possession pursuant to such a sale. Obviously, there could not be any actual delivery of an undivided share. O. 21, R. 35 contemplates delivery of joint possession where the decree itself is for joint possession of immovable property and in such a case possession could be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drums or by other customary mode, at some convenient place, the substance of the decree. This is the import of sub-R. (2) of R. 35 of O. 21 of the. Code. This rule cannot be invoked in the instant case.

6. The other rule which speaks about delivery of property to a purchaser in execution is R. 95 of O. 21 of the Code and that also does not enable the purchaser of an undivided share of a property to seek for either delivery of joint possession or symbolic delivery. O. 21, R. 96 of the Code serves