RADHANATH DAS Vs. SADHAN CHANDRA DEY

JUDGEMENT

(1.) THIS appeal in our opinion, must succeed. The decree in the present case was one for possession of a plot of land which was described therein as settlement plot No. 612, consisting of one bigha and odd of land, and tank lying within certain boundaries. It was executed as a decree for khas possession. The writ issued was in accordance with Order 21, Rule 35 and that writ being executed, a receipt was given on behalf of the decree-holder stating that possession to the exclusion of others had been received. No objection to the delivery of possession was taken either by the decree-holder or by anybody else and the Court made the following order: Possession delivered on 10 May 1931. No objection put in. No other steps taken. Order that the execution case is dismissed on part satisfaction.

(2.) PART satisfaction was recorded because the decree as to costs was yet unrealised. Thereafter the present execution has been started by the decree-holder in respect of the same decree, and the substance of his case is that he now wants to have khas possession of the decretal lands by ousting the judgment-debtors because as he alleges, on the previous occasion only symbolical possession was asked for by oversight, that it was only such possession that was given and that in the previous petition for execution the decretal land had been wrongly described as dag No. 612 in the place of dag No. 577. The Courts below have ordered the execution to proceed. The allegations on which the present case is founded are not true; the decree was in respect of dag No. 612, the writ issued was for khas possession and it was khas possession that was delivered. To let the present petition proceed would be clearly to go behind the decree, and to allow the decree-holder to execute the decree a second time for getting the same kind of possession that he has admitted he got. If dag No. 612 and not No. 577 was the correct number of the dag or if only symbolical possession was what was delivered, his remedy does not lie in a second execution, whatever other remedy if any he may have. The appeal is allowed, and the orders of the Courts below being set aside it is ordered that the execution petition be dismissed with costs in all the Courts, hearing fee in this Court being assessed at one gold mohur.