JUDGMENT

Scott-Smith, J. - This is a second appeal from the order of the District Judge, Attock, confirming the order of the trial) Court dismissing the plaintiff's claim for possession of a site in a village as barred by time. The plaintiff obtained a decree for possession on the 26th May, 1908, and on the 10th November, 1908, made an application for execution. On the 4th February, 1909, the bailiff reported that possession had been given, and the decree-holder, Zardad Khan, put in a dahki nama and the proceedings were consigned to the record-room. The present suit was brought for possession of the same land on the ground that the plaintiffs had obtained possession in execution, and that they were subsequently dispossessed by the defendants, judgment-debtors. The Courts below have held on the evidence that the defendants never gave up possession and that the plaintiffs never obtained actual possession in execution of the decree. The learned District Judge went further and said that the bailiff's report and the plaintiff's receipt filed in the execution proceedings were false documents which misrepresent the facts. He held that it was most improbable that the defendants would quietly give up possession of the disputed land, and on the evidence he held as a fact that they did not. Prom this order a second appeal has been filed in this Court.

2. The finding that the plaintiffs never obtained possession of the land decreed appears to be a finding of fact which cannot be contested in second appeal. Mr. Nanak Chand, however, refers to Juggobundhu Mukerjee v. Bam Chunder Bysack (1880) 5 Cal. 584 as an authority for the proposition that formal possession, if given to a decree-holder, is sufficient to give the plaintiff a fresh starting point of limitation. Now, the case reported in Juggobundhu Mukerjee v. Bam Chunder Bysack (1880) 5 Cal. 584 was one, as pointed out in Jang Bahadur Singh v. Banwant Singh (1921) 43 All. 520 relating to zemindari property which was in possession of tenants, and of which actual possession could not be delivered. Such a case is provided for by Order 21, Rule 36 of the Civil Procedure Code, and in such a case only symbolical possession can be given. In the present case the judgment-debtor was in actual possession, and actual possession, therefore, had to be given in accordance with Order 21, Rule 35 of the Code. In Mahadev Sakharam Parkar v. Janu Namji Hatley (1911) 36 Bom. 373, which was a case in which possession had to be given under Order 21, Rule 95, it was held that the merely formal possession of immoveable property by a purchaser at a Court-sale cannot prevent limitation running in favour of the judgment-debtor where the latter remains in actual possession, and the property is not in the occupancy of a tenant or other person entitled to occupy the same.

3. Now, Order 21, Rule 95 corresponds with Order 21, Rule 35, and the procedure for delivery of possession is the same in both. Similarly, the procedure is the same under Rules 36 and 96, and therefore, the authority cited is applicable to the present case. In Jang Bahadur Singh v. Hanwant Singh (1921) 43 All. 520, also a Full Bench ease, the ruling in Mahadev Sakharam Parkar v. Janu Namji Hatley (1911) 36 Bom. 373 was approved of and that in Juggobundhu Mukerjee v. Bam Chunder Bysack (1880) 5 Cal. 584 was distinguished. I agree with the decisions in those two Full Bench cases, and hold it was necessary for the decree-holders to get actual possession of the land decreed to them. It was found as a fact that they never got possession, and that the defendants-judgment-debtors never gave up possession.

4. The appeal accordingly fails and is dismissed with costs.