AYER RAVJI VASTA Vs. JOSHI GOPALJI KHIMJI

JUDGEMENT

(1.) The facts out of which this appeal arises can be briefly stated as follows:-In a redemption suit by a mortgagor against the two mortgagees the appellant who was a tenant of the mortgagees was also joined as party but he did not file a written statement. A preliminary decree was passed by consent between the mortgagor and the mortgagees. In the final decree it was ordered that possession should be delivered to the mortgagor.

(2.) In the execution of that decree the appellant who was a tenant of the mortgagees gave an application praying to the Court that actual possession should not be given but only symbolical possession. In para 2 of his application he has stated as follows :

(3.) the mortgagees and that he was not a party to the compromise between the plaintiff and the mortgagess. He therefore prayed that symbolical possession should be given to the plaintiff under Order 21 Rule 36 C.P. Code. The learned Sub Judge Bhuj who heard the application passed an order for symbolical possession holding that symbolical possession should be delivered under Order 21 Rule 36 and under Order 21 Rule 96 C.P.Code. In appeal the learned District Judge kutch ordered that actual possession should be delivered and not symbolical possession. The immovable property in question was a shop. Order 21 Rule 36 C.P.Code reads a follows :