A decree holder is entitled to file a second execution application for actual possession after symbolical possession has been delivered to him, if he has not accepted the symbolical possession in full satisfaction of the decree.

P.C.Pandit, J.

1. This is an execution second appeal against the decision of the Additional District Judge, Karnal, reversing the order of the Executing Court, holding that the decree holders cannot file a second execution application for the delivery of actual possession of the land for which the decree had been granted.

2. On 4th of June 1960, a decree had been passed in favour of Nand Ram and seven others, respondents, against Daljit Singh and Smt. Datar Kaur, appellants, for possession of some land. On 2nd of February, 1962, the decree holders filed an execution application praying that possession of the land be delivered to them according to law. A warrant directing the delivery of possession to the decree-holders was issued and was forwarded to the Tehsildar. At that time crops were standing on the land with the result that only symbolical possession was given to the decree holders on 3rd February 1962. Thereafter on 17th of March 1962 the execution case was consigned to the record room, as the decree had been partly satisfied. About a month after this date, after the crops had been removed from the land, the decree holders made another application to the execution Court on 16th of April, 1962 for delivery of actual possession on the ground that the crops had been cut and removed from the said land. The judgment debtors objected that since symbolical possession had been delivered to the decree holders, the decree had already been satisfied and the second execution application was, therefore, incompetent. This object prevailed with the executing Court and thereafter the matter went in appeal to the Additional District Judge, Karnal who accepted the appeal and held that there was no merit in the objection raised by the judgment debtors and the decree-holders were perfectly entitled under law, to file a second application for actual possession of the land decreed in their favour. Against this decision, the present second appeal has been instituted by the judgment debtors.

3. After hearing the counsel for the parties, I find that there is no merit in this appeal. Before the executing court, evidence was led by both the parties regarding the objection raised by the judgment-debtors. After discussing the entire evidence, the Additional District Judge came to the conclusion that it could not be held that at the time of the first execution application, the whole body of decree holders had consented to or accepted symbolical possession of the land, expressly or even impliedly, in satisfaction of the decree passed in their favour. They never accepted symbolical possession of the land in full satisfaction of their decree. They did not relinquish their claim for actual possession of the land at that time. It was therefore, that the execution application was consigned to the record room in partial satisfaction of the decree. The fact that the second execution application was made within one month of the order passed on the first one was a circumstance which further showed that the decree holders did not accept symbolical possession in lieu of actual possession of the land. All these are findings of fact which the learned Additional District Judge arrived after considering the oral evidence produced by the parties and the report made by the Girdawar Kanunago regarding the delivery of symbolical possession on the first occasion. These findings have not been shown to be vitiated by any error of law and they are binding in second appeal. It is undisputed that if a decree is granted for possession of the land the same cannot be said to have been fully satisfied, if the decree-holder is only granted symbolical possession of that land, unless of course at the time of the delivery of symbolical possession the decree holder, expressly or even impliedly, consents to the delivery of symbolical possession in full satisfaction of the decree. It was held by the Supreme Court in Shew Bux Mohata and another v. Bengal Breweries Limited and ot