(1.) THIS civil miscellaneous appeal poses for determination a question as to the competency of the executing court to direct fresh delivery of immoveable property there having been earlier a symbolical one. The reference to the Full Bench was occasioned by a doubt felt as to the correctness of the decision in Manager of Sri meenakshi Devastanam, Madura v. Abdul Kasim Sahib, ILR 30 Mad 421. But in the view we are disposed to take of the appellants' right to dispute the authority of the court to grant the relief sought a consideration of that decision in detail has become unnecessary.
(2.) THE facts giving rise to the appeal are these. The appellants are the sons of the third respondent. The Kumbakonam Bank Ltd. , obtained a decree for a large sum of money against them. The trial court in addition granted relief as against the share of the third respondent (one-fourth) in a house belonging to the family, and which had been given as security to the loan. Under the decree the appellants were liable to the extent of their interest in the joint family properties. The decree-holder enforced the decree in execution by proceeding against the charged property and also independently attaching the remaining three-fourth share therein of the sons and bringing them for sale. In the events that followed, the decreeholder became the purchaser of the one-fourth share in enforcement of the charge the first respondent purchased the other three-fourth share at the sale held in pursuance of the attachment. The sales were duly confirmed. We may also state in passing that subsequently this court, in an appeal filed by the bank, declared that the charge created by the trial court would ensure not merely to comprehend the interest of the third respondent in the property but also that of his sons.
(3.) BOTH the purchasers, the Kumbakonam Bank Ltd. , and the first respondent, applied for and obtained on 29-7-1957, what was characterised as symbolical delivery of possession of the one-fourth and three-fourth share respectively. The first respondent thereafter purchased from the Kumbakonam Bank Ltd, its one-fourth share. Alleging that by virtue of his purchase he became entitled to the entire property, the first respondent applied to the executing court in E. A. No. 367 of 1959 for actual delivery of the property under Or. 21 rule 95 C. P. C. The judgment-debtors had also filed applications to set aside the court sales. Those applications failed. It is needless now to refer to the vicissitudes of the petition filed by the first respondent for actual delivery of the entire house, except to state that ultimately it was disposed of by a. compromise between the parties, which was duly recorded after being sanctioned by the Court as being one in the interests of the minor appellants. Under the compromise the judgment-debtors were enabled to retain the property themselves if they were to pay a sum of Rs. 27000 to the first respondent in five instalments spread over nearly five years with an express stipulation that time formed the essence of the contract. There was also a provision that in case of default in the payment of any one instalment, the purchaser would be entitled to take possession of the entire property in execution under Or. 21 Rule 95 C. P. C. "without notice to the defendants and without the plea of limitation being available to them". The validity of the last part of the compromise, which; on the face of it is severable from the rest, does not, however, call to be decided upon now.