RAMA SUBUDHI Vs. BHAGIRATHI

JUDGEMENT

(1.) This appeal is directed against the decision of a learned single Judge of this Court confirming an order for delivery of possession of immovable property under Order 21 Rule 35, C. P. C. passed by the learned Subordinate Judge of Bhubaneswar. The appeal poses for determination a question as to the competency of the executing Court to direct a fresh delivery of actual possession of immovable property there having been earlier a symbolical one.

(2.) The short facts are the following: Respondent No. 1 obtained a decree for delivery of possession of 0.523 acre of land out of plot No. 1108 which comprises an area of 0.525 acre. He levied execution of the decree and applied for delivery of actual possession after demarcation and identification of the land by a survey knowing commissioner. The executing Court issued a writ of delivery of possession under Order 21, Rule 35, C. P. C. and appointed a commissioner to demarcate the property at the time of delivery of possession. The process server entrusted with the writ reported that he had delivered physical possession of the property to the decree-holder after evicting the judgment-debtors therefrom. The commissioner appointed by the Court also reported that he had demarcated the land at the time of delivery of possession. The decree-holder also made an endorsement on the back of the writ that he had got actual physical possession. Thereafter the judgment-debtors 5 to 7, 9 and 14 filed a petition on 10-11-1972 in the executing Court alleging that delivery of possession was only a paper delivery and not actual physical delivery and that they were still continuing in possession of the property. According to them, the process server and the commissioner had submitted false returns about actual delivery of 'possession. The executing Court held an enquiry into the allegations and found by its order dated 27-1-1973, that there was no demarcation of the property at the time of delivery of possession and that the possession which had been delivered to the decree-holder was only symbolical in nature. On 26-2-1973 the decree-holder filed a petition for fresh delivery of possession of 0.523 acre out of 0.535 acre and the judgment- debtors 5 to 7, 9 and 14 filed an objection under Section 47 C. P. C. Their contention was that symbolical delivery of possession having been given by the Court to the decree-holder, there could be no further jurisdiction (sic) having been overruled by the executing Court, the judgment-debtors came up in appeal to this Court.

(3.) The learned single Judge who heard the appeal came to hold that the decree- holder being entitled to actual physical possession, the symbolical possession was a nullity and accordingly maintained the order of the executing court for fresh delivery of possession. It was contended before the learned single Judge that the decree was incapable of execution as it does not specify the particular portion of plot No. 1108 which the decree-holder claimed in the suit. The learned Judge repelled the contention with the following observations :