DODDA BASAPPA Vs. PUDDI EARAPPA

JUDGEMENT

(1.) The plaintiff (appellant in this appeal) got a decree for possession of certain lands against five defendants of whom Defendants Nos. 2 to 5 were tenants. Having got the decree, he proceeded to execute it. The delivery of the land was ordered on the 20 November 1922, and it was delivered on 11 December 1922. At the same time the plaintiff asked in his execution petition for the attachment of the standing crop. The 2nd defendant put in a claim petition which must be taken to have been allowed on 3 March 1923, because the order says "Attachment has been raised." On the same day the plaintiff applied in another execution application (E. A. No. 115 of 1923) saying that he had made a mistake in attaching the crop, for the delivery of sugar-cane crop standing on a portion of the land. The District Munsif's order dated 3 March 1923, upon this petition was "Deliver."

(2.) Now this order was a wrong order, because if possession had already been delivered on 11 December 1922, no further order for delivery could be made on 3 March 1923. If possession was not properly given on 11 December 1922, the decree-holder should have put in a fresh petition at that time and should have got effective possession as he was entitled to do. The tenants were made parties to the decree and so it was not one of those decrees which are executed under Order 21, Rule 36, by symbolical delivery. If, on the other hand, possession was not given when the decree was first executed, the decree-holder was not entitled under his decree to get delivery of the crops apart from the land. If his intention was to attach the crops apart from the land, then he should have applied for attachment and not for delivery. If he had done that, he would have been faced with the order just passed raising the attachment already made.

(3.) The respondent, instead of appealing against the District Munsif's order for delivery put in the present petition for re-delivery which the District Munsif dismissed and the District Judge allowed. Seeing that the District Munsif should not have ordered delivery on 3 March 1923, and that the decree-holder's object in asking for separate delivery of the crops was to nullify the effect of the order just passed upon the defendant's claim petition raising the attachment. I find no occasion for interfering with the District Judge's order which had the effect of restoring the parties to the position that they occupied before the appellant put in his petition for the delivery of the sugar-cane crops. The appellant's vakil admits that he does not claim mesne profits for the year in which these crops were raised as against the respondent in addition to the crops. The question of mesne profits could not be settled in an application for delivery of the land and the crop standing on it.