LAWS(MAD)-1991-1-78

C RAMASAMI Vs. KURUVA BOYAN

Decided On January 18, 1991
C. RAMASAMI Appellant
V/S
KURUVA BOYAN Respondents

JUDGEMENT

(1.) IN the counter filed by the first respondent in CM.P. 15647 OF 1990 (first respondent in the Second Appeal) it is stated that items 1 to 3 have been delivered to him already and the first respondent has produced the certified copies of the delivery athakshis . I accept the evidence afforded by the certified copies of the delivery athakshis and reject the contention of the petitioner-appellant that it was only a paper delivery and the properties (items 1 to 3) were not actually delivered to the first respondent.

(2.) LEARNED counsel for the appellant placed reliance on the judgment of Gokulakrishnan, J. as he then was in Ramalingam v. Krishna Reddy 1 . It was held in that case that where delivery of pos session in execution of a decree was alleged to have been only a paper delivery and not actual physical delivery, it cannot be said that the decree has been executed in full until the court satisfies itself that there has been a real actual physical delivery in execution. With respect, I do not agree with the said proposition. It is not possible for a court to ignore the evidence afforded by the court officials to the effect that delivery has been ef fected, on the mere allegation that there was no actual delivery. In order to reject the official records such as the, bailiffs endorsements, there must be a definite and specific plea of fraud. In the absence of a plea of fraud with full particulars as are necessary to support the same, the court shall not direct an enquiry as to whether there is actual delivery. In every case the judgment debtor is interested in stating that there is no physical delivery in order that he may obtain an order of stay in the appellate Court. A bare allegation that the delivery is a paper delivery and the appellant continues in possession is hardly sufficient to direct an enquiry whether there is physical delivery. The presumption under S. 114 of the Evidence Act that official acts are performed regularly will undoubtedly apply. Even in the above judgment the following observations are found: