1982 Supreme(MP) 16

M. D. Bhatt, J.
Kamalsingh v. Motisingh.
C. R. No. 433 of 1980 (G): Decided on 12-1-1982.

Headnote:(1) Civil P. C., 1908 -- O.21, R. 35 and S. 144 -- decree for possession of agricultural land only -- crops standing thereon cannot be deLi"Vered crops deLi"Vered illegally -- remedy of restitution available.

        (2) Civil P. C., 1908 -- O.21, R. 22 -- show cause notice of execution when necessary-execution filed within two years from appellate decree -- notice not necessary.

        (3) Civil P. C., 1908-- O.21, R. 22, Ss. 144 and 151-- application under objection with regard to deLi"Very of possession not raised in executing Court -- such objection Cannot be heard In revision petition.

        This is a judgment debtors revision against the executing Courts order dated 12th March 1980 dismissing his application filed under Order 21, rule 22 read with section 151 of the Code of Civil Procedure in the matter of deLi"Very of possession of land and also the crops standing thereon.

        Held: So far as the question of issue of show cause notice of execution in accordance under R. 21 rule 22 CPC, is concerned, it is a common ground that the non applicant decree holder had, at first, filed the execution petition soon after he had obtained the decree in his favour from the trial Court. Thereafter, the judgment debtor had preferred the appeal against the trial Courts decision and the appeal was dismissed on 10-1-1980, as evident from the copy of the said decree on record. The decree holder then filed a fresh execution petition on 30-1-1980, obviously, proviso of rule 22 of Order 21 CPC, is found to be attracted to the present ease, and no question of issue of notice arises, when the execution application is found to have been made within two years from the date of the appellate decree. (See Inacencio v. Francisco, AIR 1978 Goa 13).

        So far as the question of deLi"Very of possession in execution proceedings is concerned, the applicant judgment debtors objection in this regard, as taken in the present revision, cannot be sustained, obviously for the simple reason, that he had raised no such objection before the executing Court, when he had filed an application under O. 21, R. 22 read with S.151 and 144 CPC. Otherwise also, papers on record in the file of the execution proceedings clearly show the due deLi"Very of possession, warrant of possession receipt, Panchnama and memorandum of village Kotwar for proclamation of the deLi"Very of possession by beat of drum, are on record. No doubt, in the receipt signed by the decree holder for taking possession, there is an inadvertent mistake in describing the survey number of the land in question. Case No. 75-A/75, and not the survey number, is actually found to have been stated against the survey number But such mistake is of no consequence. Such receipt cannot be read in isolation, and has to be construed in the light of and together with warrant of possession, Panchanama and the memorandum for proclamation, wherein, it has been stated, without any ambiguity that the possession of survey number 363, area 15 Bighas 10 Biswas, was required to be deLi"Vered under the warrant and the same had been deLi"Vered. Thus, due deLi"Very of possession of land in question is found to have been made in the execution of the decree.

       

        Now, I come to the question as to whether the decree holder was entitled to possession of crops, standing on the land. The position is not in dispute that at the relevant time, when deLi"Very of possession of the land was made in the execution proceedings, the applicant judgment debtors crops were standing on the said land. No doubt, the receipt, Panchnama and proclamation do not make any mention regarding the deLi"Very of crops, but in the absence of any proof to the contrary or any other material indicating otherwise, it stands to reason that the decree holder, through his counsel, must have taken possession of the standing crops also, along with the land in question. This Court in Civil Revision No. 215 of 1979, Bhura alias Bhure v. Manbai and others (Gwalior Bench) has held as under:

        "The standing crops cannot be regarded as part of the land for purposes of Order 21 R. 35 CPC. Accordingly, deLi"Very of possession in pursuance of a decree for deLi"Very of possession of land only cannot operate as transfer of title of crops to the decree holder and cannot divert the judgment debtor from ownership thereof."

        In view of the above, it is clear that the non-applicant decree holder could not be entitled to the judgment debtors crops standing on the land in question, inasmuch as, the decree was only for deLi"Very of possession of the land. The judgment debtor, obviously, is rightly entitled to the crops or the value thereof, and the executing Courts order to the contrary is not liable to be sustained, It may however, be stated that possession in the execution proceedings had been given on 2-2-1980, when the judgment debtors crops were standing thereon about the agricultural seasons have now passed by thereafter; and it is obvious that the crops standing at the relevant time must have been long back reaped, stacked and most probably disposed of So now, the applicant judgment debtors remedy lies in getting the restitution either for the return of the crops, if the same is still available, or the value thereof. AIR 1978 Goa 13 and CR No. 215 of 1979 (G), decided on 11-4-1979 relied on. AIR 1953 Nagpur 9 referred to. Revision Partly allowed.