VARGHESE Vs. CHACKO

JUDGEMENT

(1.) The facts necessary for the disposal of this appeal are thus: The suit property belonged to one Geevarghese Kathanar, against whom the 4th defendant obtained a degree for money in O. S. No. 1158 of 1086 on the file of the Munsiff, Alleppey, attached the property in 1099, brought it to sale on 21-7-1104 and purchased it himself, the sale certificate being Ext. A. The sale was duly confirmed on 28-12-1104 and followed by delivery of possession through court on 30-7-1107, the delivery kaichit being Ext. B here. Subsequently the 4th defendant assigned the property to the 1st plaintiff, who is his nephew, Geevarghese Kathanar having died, his brother, Thommi Thoma, was substituted as his legal representative and both the court sale under Ext. A. and the delivery under Ext. B were had with him on record. The present 1st defendant is the son and heir of the aforesaid Thoma. The present appellant, the 7th defendant in the case, had obtained a decree for money against the 1st defendant, and had purchased the plaint properties in execution sale long subsequent to the 4th defendant's purchase, and taken delivery as per Ext. IV. In the present suit, the plaintiffs seek recovery of the property from the defendants by virtue of their title under Exts. A and B. The defendants contended that the suit was barred by limitation, that there was no physical delivery of the property as per Ext. B, that the right of the plaintiffs was only to move in execution in O. S. No. 1158 of 1086 for actual possession of the property and that the present suit is barred by S.47 CPC. All these contentions were repelled by the courts below and the suit decreed in respect of the first item.

(2.) Counsel for the appellant contended that the judgment debtor, the father of the 1st defendant, having been then in actual possession of the property the only process valid in law was under O.21 R.95, for delivery of possession by removal of the judgment debtor therefrom. The courts below have concurred to find that at the delivery under Ext. B the judgment debtor was not physically ousted from the property. It has been held by this court in State of Travancore - Cochin v. Lekskmi Ammal Meenakshi Amma ( 1957 KLT 1094 ), People's Coop. Bank v. P.A. Pillai (AIR 1959 Kerala 133) and by the Supreme Court in Shew Bux Mohata v. Bengal Breweries Ltd. ( AIR 1961 SC 137 ) that where the decree holder who could have taken actual possession of the property in possession of the judgment debtor has taken only symbolical possession thereof without his ouster, the proceedings are binding on the parties, the judgment debtor & the decree holder, & that subsequent thereto the decree holder cannot move the execution court for delivery of khas possession, & further that his remedy is only a fresh suit for possession. Counsel relied on AIR 1959 Punjab 468 and AIR 1952 Allahabad 313. When there are rulings by this court, and the Supreme Court, there is no need to refer to the rulings of other High Courts on the point. After the proceedings under Ext. B no further execution is possible and therefore S.47 CPC. cannot be attracted in this case.

(3.) It is also contended that a subsisting title has not been proved by the plaintiffs. Ext. B delivery kaichit shows that possession of the property was given by the court to the plaintiffs' predecessor in interest. That binds the judgment debtor in the case; and, therefore, the present 1st defendant who is his legal representative. The plaintiffs, in the split second when delivery was effected under Ext. B have to be held to have been put in possession of the property and that possession having been within 12 years prior to the institution of the suit, is sufficient to support the claim for eviction in this suit; and the judgment debtor who thereafter continued in possession of the property had no legal authority to hold. The Second Appeal has no force and is therefore dismissed with costs. Counsel fee Rs. 50/-.