(1.) THIS is an appeal by the decree -holder, and it arises out of an execution case. The facts leading to this appeal may toe briefly stated as follows:
(2.) THE decree -holder obtained a decree for delivery of possession and compensation against the judgment -debtor on 21 -12 -1950. He levied execution of the decree in Execution Case No. 16 of 1951, in which he prayed for possession and realisation of the compensation decreed. A writ for delivery of possession,, was issued in favour of the decree -holder, and though on one occasion it was returned unserved, it appears that on the second occasion the Nazir purported to give delivery of possession to the decree -holder on 15 -12 -51 and submitted a report to that effect. The Court then recorded an order saying that possession had been delivered, and dismissed the execution case. It may be stated that during the pendency of the execution case, the judgment -debtor had filed an appeal against the decree under execution, but there was no stay of the execution case. His appeal was eventually dismissed on 19 -1 -53. The decree -holder then took out fresh execution of the decree in Execution Case No. 5 of 1953, to which the present appeal relates.
(3.) MR . Lahkar submits that toe decree should be taken to have been satisfied in view of the order passed in the previous execution case dismissing the execution' and giving delivery of possession. In my opinion, that formal order should not be read in that light, and if the fact remains that the decree -holder did not obtain possession, then there is no reason why the executing Court should not proceed to execute the decree afresh. It was suggested that if after delivery of possession, the judgment -debtor dispossessed the decree -holder, the right course for the decree -holder, if any, was to Institute a suit for recovery of possession, and not to file a fresh execution case. Even if that were so, the answer to the argument is that if anything had been done by the judgment -debtor to dispossess the decree -holder during the pendency of the appeal, the fact that the appeal was eventually decided in favour of the decree -holder, gave him a fresh right to levy execution on the basis of that decree, and if by any act or conduct, the judgment -debtor, during the interim period, sought to interfere with the possession of the decree -holder or to deprive him of that possession, he did so at his peril, and the matter could be rectified in a fresh execution case on the basis of the appellate Court's decree.