A decree-holder who has been given symbolical possession and acknowledged satisfaction cannot maintain a second execution application for delivery of actual possession. The proper remedy is to institute a fresh suit for ejectment.

Falshaw, J.

1. This execution second appeal has arisen in the following circumstances. Rakha Singh and Natha Singh respondents obtained a decree against Jaimal Singh appellant for the possession of about 7 bighas of land on 16-8-1952 and on 20-8-1952 they applied for the execution of the decree by delivery of possession of the land.

The Court ordered the issue of the necessary warrant and fixed the 8th November for its return. On that date the decree-holders appeared and filed a receipt acknowledging having received possession of the land and on the strength of this acknowledgment the execution application was consigned to the Record Room as fully satisfied.

2. It appears, however, from the report of the bailiff dated 10-9-1952 that physical possession of the land had not been delivered, as the crops of the judgment-debtor were standing on the land in suit, and only symbolical possession was delivered. The execution application from which the present appeal had arisen was filed about a year later on 18-8-1953 & it was alleged that the decree-holders had not actually been placed in possession of the land in the previous execution proceedings on account of the presence of standing crops on the land and the judgment-debtor had since then not allowed them to enter on the land, of which they now sought delivery of actual possession. This was opposed by the judgment-debtor on the ground that after the decree-holders had acknowledged the delivery of possession in the previous year and the execution application had been consigned to the Record Room as satisfied the executing Court was functus officio and no second execution application lay, the proper remedy of the decree-holders being a fresh suit for possession.

3. Both the executing Court and the learned Senior Sub Judge in first appeal held that in the circumstances of the present case the decree-holders were entitled to maintain a fresh application for delivery of actual possession, and the judgment-debtor has filed this appeal.

4. In deciding the matter in favour of the decree-holders the courts below have apparently relied on the decision of Richardson and Beach-craft JJ. in Khetra Mohan v. Jogendra Chandra AIR 1918 Cal 350 (A). I use the word "decision" in this context advisedly, since there is practically no judgment, which consists merely of two or three sentences to the effect that the appeal must be dismissed with costs as the decision of the lower Court is correct, and in order to make this decision intelligible the publishers have printed the judgment of the lower Court which constitutes all but about half a dozen lines of the report. It appears from this judgment that in execution of a decree for possession of certain property in a partition suit the decree-holder had applied for execution and he was given what is described as formal possession of the property, of which he gave an acknowledgment in the executing Court, the execution application then being consigned to the Record Room as partly satisfied. Thereafter the decree-holder again applied for execution by delivery of actual possession and his execution application was dismissed on the ground that he had already had possession delivered to him in the manner for which he had applied. The Court of first appeal had held that since he was entitled to actual possession and actual possession had not been delivered to him in the first execution application, execution of the decree was incomplete and the second application lay. Certain earlier decisions of the Calcutta High Court were distinguished on the ground that the Code of Civil Procedure had been changed in the meantime.

5. This decision certainly appears to support the case of the decree-holders in the present case, though it might have been better if the learned Judges had delivered a full Judgment Instead of a brief order dismissing the appeal, and had discussed the cases mentioned in the order of the lower appellate Court. There is moreover no doubt th