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High Court Of Orissa
P. K. Mohanti And B. N. Misra, JJ.
RAMA SUBUDHI - Appellant
Versus
BHAGIRATHI - Respondent
A. H. O. 7 Of 1976
Decided On : 09/28/1981
EXECUTION OF DECREE - DELIVERY OF POSSESSION - FRESH DELIVERY OF POSSESSION - COMPETENCY OF EXECUTING COURT - SYMBOLICAL POSSESSION - ACTUAL PHYSICAL POSSESSION - DECREE INCAPABLE OF EXECUTION - SPECIFICATION OF PORTION OF PLOT - Order 21, Rule 35, C. P. C.
Fact of the Case:
Respondent obtained a decree for delivery of possession of 0.523 acre of land out of plot No. 1108 which comprises an area of 0.525 acre. He levied execution of the decree and applied for delivery of actual possession after demarcation and identification of the land by a survey knowing commissioner. The executing Court issued a writ of delivery of possession under Order 21, Rule 35, C. P. C. and appointed a commissioner to demarcate the property at the time of delivery of possession. The process server entrusted with the writ reported that he had delivered physical possession of the property to the decree-holder after evicting the judgment-debtors therefrom. The commissioner appointed by the Court also reported that he had demarcated the land at the time of delivery of possession. The decree-holder also made an endorsement on the back of the writ that he had got actual physical possession. Thereafter the judgment-debtors 5 to 7, 9 and 14 filed a petition on 10-11-1972 in the executing Court alleging that delivery of possession was only a paper delivery and not actual physical delivery and that they were still continuing in possession of the property. According to them, the process server and the commissioner had submitted false returns about actual delivery of 'possession. The executing Court held an enquiry into the allegations and found by its order dated 27-1-1973, that there was no demarcation of the property at the time of delivery of possession and that the possession which had been delivered to the decree-holder was only symbolical in nature. On 26-2-1973 the decree-holder filed a petition for fresh delivery of possession of 0.523 acre out of 0.535 acre and the judgment-debtors 5 to 7, 9 and 14 filed an objection under Section 47 C. P. C.
Finding of the Court:
The Court held that the executing Court has jurisdiction to direct fresh delivery of possession, there having been earlier a symbolical delivery of possession. The Court also held that actual physical delivery of possession of a portion of the plot can be given by the executing Court when it has not been specified in the decree.
Issues: 1. Whether the executing Court has jurisdiction to direct fresh delivery of possession, there having been earlier a symbolical delivery of possession? 2. Whether actual physical delivery of possession of a portion of the plot can be given by the executing Court when it has not been specified in the decree?
Ratio Decidendi: 1. The Court held that if possession had been delivered legally and actually and subsequent to that possession, the judgment-debtor has taken possession of the property, no second execution will lie after the satisfaction of the decree. In such cases, a suit alone will lie. In the present case, the judgment-debtors themselves took the stand that the alleged delivery of possession by way of execution was only a paper delivery and not actual physical delivery. The Court after enquiry found that actual possession had not been delivered in accordance with the provisions of Order 21, Rule 35 C. P. C. In such a case, it cannot, therefore, be said that the decree has been executed in full until the Court satisfies itself that there has been actual physical delivery of possession as claimed by the decree-holder. Once it is found that there is no actual possession given in accordance with the provisions of Order 21, Rule 35 C. P. C. there cannot be any finality in the execution proceedings and as such a subsequent application is maintainable for actual delivery of the property. 2. The Court held that the description of the land as given in the plaint, the decree and the execution petition is quite vague and uncertain. The land is described as "plot No. 1108 A. 0. 523". Admittedly, Plot No. 1108 comprises an area of 0. 535 acre. The decree directs delivery of possession of a portion of the land, that is, 0. 523 acre. The remaining portion of 0. 012 acre was not the subject matter of the suit. The portion measuring 0. 523 acre has not been specified by boundaries or a sketch map. In the absence of sufficient particulars, it is difficult to fix up its identity.
Final Decision: The Court allowed the appeal and set aside the order for fresh delivery of possession in favor of the decree-holder.
P. K. MOHANTI, J.
( 1 ) THIS appeal is directed against the decision of a learned single Judge of this Court confirming an order for delivery of possession of immovable property under Order 21 Rule 35, C. P. C. passed by the learned Subordinate Judge of Bhubaneswar. The appeal poses for determination a question as to the competency of the executing Court to direct a fresh delivery of actual possession of immovable property there having been earlier a symbolical one.
( 2 ) THE short facts are the following: Respondent No. 1 obtained a decree for delivery of possession of 0. 523 acre of land out of plot No. 1108 which comprises an area of 0. 525 acre. He levied execution of the decree and applied for delivery of actual possession after demarcation and identification of the land by a survey knowing commissioner. The executing Court issued a writ of delivery of possession under Order 21, Rule 35, C. P. C. and appointed a commissioner to demarcate the property at the time of delivery of possession. The process server entrusted with the writ reported that he had delivered physical possession of the property to the decree-holder after evicting the judgment-debtors therefrom. The commissioner appointed by the Court also reported that he had demarcated the land at the time of delivery of possession. The decree-holder also made an endorsement on the back of the writ that he had got actual physical possession. Thereafter the judgment-debtors 5 to 7, 9 and 14 filed a petition on 10-11-1972 in the executing Court alleging that delivery of possession was only a paper delivery and not actual physical delivery and that they were still continuing in possession of the property. According to them, the process server and the commissioner had submitted false returns about actual delivery of 'possession. The executing Court held an enquiry into the allegations and found by its order dated 27-1-1973, that there was no demarcation of the property at the time of delivery of possession and that the possession which had been delivered to the decree-holder was only symbolical in nature. On 26-2-1973 the decree-holder filed a petition for fresh delivery of possession of 0. 523 acre out of 0. 535 acre and the judgment-debtors 5 to 7, 9 and 14 filed an objection under Section 47 C. P. C. Their contention was that symbolical delivery of possession having been given by the Court to the decree-holder, there could be no further jurisdiction (sic) having been overruled by the executing Court, the judgment-debtors came up in appeal to this Court.
( 3 ) THE learned single Judge who heard the appeal came to hold that the decree-holder being entitled to actual physical possession, the symbolical possession was a nullity and accordingly maintained the order of the executing court for fresh delivery of possession. It was contended before the learned single Judge that the decree was incapable of execution as it does not specify the particular portion of plot No. 1108 which the decree-holder claimed in the suit. The learned Judge repelled the contention with the following observations :
". . . . . . But the court below has directed the decree-holder to take steps for appointment of a commissioner for demarcation of the property according to the decree. This shows that the point now raised by the appellants has not been disposed of by the Court below, because the occasion for such disposal has not arisen as yet. So, I do not express any opinion on the point. It is open to the appellants to agitate the point in the Court below at proper time. ''
Aggrieved by this decision, the judgment-debtors have preferred this appeal. The names of appellant No. 1 Rama Subudhi and appellant No. 5 Raghunath Sadangi have been deleted as per order No. 7 dated 22-4-1976.
( 4 ) THE points that arise for consideration in this appeal are : (1) whether the executing Court has jurisdiction to direct fresh delivery of possession, there having been earlier a symbolical delivery of possession, an
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