JAIMAL SINGH DASAUNDHA SINGH Vs. RAKHA SINGH

JUDGEMENT

(1.) THIS execution second appeal has arisen in the following circumstances. Rakha singh and Natha Singh respondents obtained a decree against Jaimal Singh appellant for the possession of about 7 bighas of land on 16-8-1952 and on 20-81952 they applied for the execution of the decree by delivery of possession of the land. The Court ordered the issue of the necessary warrant and fixed the 8th November for its return. On that date the decree-holders appeared and filed a receipt acknowledging having received possession of the land and on the strength of this acknowledgment the execution application was consigned to the Record Room as fully satisfied.

(2.) IT appears, however, from the report of the bailiff dated 10-9-1952 that physical possession of the land had not been delivered, as the crops of the judgment-debtor were standing on the land in suit, and only symbolical possession was delivered. The execution application from which the present appeal had arisen was filed about a year later on 18-8-1953 and it was alleged that the decree-holders had not actually been placed in possession of the land in the previous execution proceedings on account of the presence of standing crops on the land and the judgment-debtor had since then not allowed them to enter on the land, of which they now sought delivery of actual possession. This was opposed by the judgment-debtor on the ground that after the decree-holders had acknowledged the delivery of possession in the previous year and the execution application had been consigned to the Record Room as satisfied the executing Court was functus officio and no second execution application lay, the proper remedy of the decree-holders being a fresh suit for possession.

(3.) BOTH the executing Court and the learned Senior Sub Judge in first appeal held that in the circumstances of the present case the decree-holders were entitled to maintain a fresh application for delivery of actual possession, and the judgment-debtor has filed this appeal.