# Narain Das v. TIJ• Stat• of V.tt,ar Pradesh Raglsubar

- **Citation:** [1961] 1 S.C.R. 680
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil Appeal No. 58 of 1958
- **Bench:** Jafer Imam, A. K. SARKAR e.nd RAGHUBAR DAYAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/narain-das-v-tij-stat-of-v-tt-ar-pradesh-raglsubar-2211
- **Pages:** 15

## Headnote

Execution proceedings-Delivery of possession acknowledgedExecution case dismissed-If f11rther execution proceeding permissible-Purchaser of rest.ondent's interest-Whether could be added as
party-Code of Civtl Proced1ire, 1908 (5 of 1908), 0. 21, r. 35,
s. 146.
The appellant decree-holders in an execution proceeding
accepted delivery o! possession and granted a receipt to the
Nazir o! the Court acknowledging lull delivery o! possession to
'them but allowed the respondents, Bengal Breweries, to remain
in possession with their permission. The appellant also permitted
the execution case to be dismissed on the basis that lull possession had been delivered to them by the respondents. Sometime
thereafter the appellant made a fresh application for execution
against the respondent, for eviction which was resisted under
. s. 47 of the Civil Procedure Code alleging that so !ar as they
were concerned, the decree had been fully executed as a result
of the earlier execution proceeding which had terminated, and
that further execution was not permissible in law.
Held, that it is open to the decree-holder to accept delivery
o! possession under 0. 21, r. 35, o! the Code o! Civil Procedure
without actual removal o! the person in possession.
II he does
that then he is bound to the position that the decree has been
fully executed, and it cannot be executed any more.
Held, further, that on the principle in Soila Bala Dassi v.
J
_,
1 S.C.R. SUPREME COURT REPORTS
681
Nirmala Sundari Dassi whereby the purchaser from the appelt96o
!ant under a purchase made prior to the appeal was brought on
-
the record of the appeal, a purchaser from the respondent under Sh•w Bux Mohata
a conveyance made prior to the appeal could be brought on the
& Others
record of the appeal.
v.
Saila Bala Dassi v. Nirmala Sundari Dassi, [1958) S.C.R. Bengal
Breweries
1287, followed.
.
Ltd. & Othm
Maharaja ]agadish Nath Roy v. Najar Chandra Parainanik,
(1930) 35 C.W.N. 12, approved.
CIVIL APPELLATE
JURISDICTION:
Civil Appeal
No. 58 of 1958.
Appeal from the Judgment and docrce dated April
5, 1955, of the Calcutta High Court in Appeal from
Original Order No. 206 of 1953, arising out of the
judgment and order dated May 20, 1953, of the Fourth
Additional Sub-Judge,· 24 Parganas at Alipore in
Misc. Case No. 15 of 1951.
G. K. Daphtary, Solicitor-General of India, 0. B.
Aggarwala and Sukumar Ghose, for the appellants.
H. N. Sanyal, Additional Solicitor~General of India
and R. 0. Datta, for the respondents Nos. 3 and 4.
1960. Septomber 15. The Judgment of the Court
was delivored by
·
SARKAR J.-This appeal arises out of an execution
Sarkar J.
proceeding. It is filed by the decree-holders and is
directed against the judgment of the.High Court at
Calcutta setting aside the order of a learned Subordinate Judge at Ali pore dismissing the objection of a
judgment-debtor to the execution. The High Court
held that the decree having· earlier been executed in
full, the present proceedings for its execution were
incompetent and thereupon dismissed· the decreeholders' petition for execution. The question that
arises is whether the decree had earlier been executed
in full.
The facts appear to have been as follows :-One
Sukeshwari died sometime prior to 1944 possessed of
three plots of land which at all material times, bore
premises Nos. 26, 27 and 28, Dum Dum Cossipore
Road, in the outskirts of Calcutta. She left a will of
which defendants Nos. 1, 2 and 6 were the executors.
682
SUPREME COURT REPORTS
[1961]
z96o
The executors granted leases of these differe;1t plots of
Sh
B-,1 h 1 land to defendants Nos. 3, 4 and 5 respectively and
ew
ux.11oaa
•
.
& Others
put them m possess10n.
v
Certain persons called Mohatas whose interests are
Buzgal
Breweries represented by the appellants in the present appeal,
Ltd. & Others . claimed that Sukeshwari ·had only a life interest in
-
the lands which on her death had vested in thrm and
Sarkar ].
the executors had therefore no right to grant the
leases.
They filed a su

## Text

Narain Das
v.
TIJ• Stat• of
V.tt,ar Pradesh
Raglsubar
Dayal j.
Sr.ptember 15.
680
SUPREME COURT REPORTS
[1961]
judgment of a. single Judge of a. High C'ourt bees.use
such an a.ppea.l lies with a certifica.te gra.nted under
Art. 132.
We therefore hold tha.t the present a.ppca.I does not
lie to this Court and that it liPs to the High Court of
Jndica.ture a.t Allahe.ba.d. We therefore direct tba.t the
memora.ndum of appea.l be returned for presentation
to the proper Court.
.Appeal incompetent.
lSHEW BUX MOHATA AND OTHERS
v.
BENGAL BREWERIES LTD. AND OTHERS
(JAFER IMAM, A. K. SARKAR e.nd RAGHUBAR
DAYAL, JJ.)
Execution proceedings-Delivery of possession acknowledgedExecution case dismissed-If f11rther execution proceeding permissible-Purchaser of rest.ondent's interest-Whether could be added as
party-Code of Civtl Proced1ire, 1908 (5 of 1908), 0. 21, r. 35,
s. 146.
The appellant decree-holders in an execution proceeding
accepted delivery o! possession and granted a receipt to the
Nazir o! the Court acknowledging lull delivery o! possession to
'them but allowed the respondents, Bengal Breweries, to remain
in possession with their permission. The appellant also permitted
the execution case to be dismissed on the basis that lull possession had been delivered to them by the respondents. Sometime
thereafter the appellant made a fresh application for execution
against the respondent, for eviction which was resisted under
. s. 47 of the Civil Procedure Code alleging that so !ar as they
were concerned, the decree had been fully executed as a result
of the earlier execution proceeding which had terminated, and
that further execution was not permissible in law.
Held, that it is open to the decree-holder to accept delivery
o! possession under 0. 21, r. 35, o! the Code o! Civil Procedure
without actual removal o! the person in possession.
II he does
that then he is bound to the position that the decree has been
fully executed, and it cannot be executed any more.
Held, further, that on the principle in Soila Bala Dassi v.
J
_,
1 S.C.R. SUPREME COURT REPORTS
681
Nirmala Sundari Dassi whereby the purchaser from the appelt96o
!ant under a purchase made prior to the appeal was brought on
-
the record of the appeal, a purchaser from the respondent under Sh•w Bux Mohata
a conveyance made prior to the appeal could be brought on the
& Others
record of the appeal.
v.
Saila Bala Dassi v. Nirmala Sundari Dassi, [1958) S.C.R. Bengal
Breweries
1287, followed.
.
Ltd. & Othm
Maharaja ]agadish Nath Roy v. Najar Chandra Parainanik,
(1930) 35 C.W.N. 12, approved.
CIVIL APPELLATE
JURISDICTION:
Civil Appeal
No. 58 of 1958.
Appeal from the Judgment and docrce dated April
5, 1955, of the Calcutta High Court in Appeal from
Original Order No. 206 of 1953, arising out of the
judgment and order dated May 20, 1953, of the Fourth
Additional Sub-Judge,· 24 Parganas at Alipore in
Misc. Case No. 15 of 1951.
G. K. Daphtary, Solicitor-General of India, 0. B.
Aggarwala and Sukumar Ghose, for the appellants.
H. N. Sanyal, Additional Solicitor~General of India
and R. 0. Datta, for the respondents Nos. 3 and 4.
1960. Septomber 15. The Judgment of the Court
was delivored by
·
SARKAR J.-This appeal arises out of an execution
Sarkar J.
proceeding. It is filed by the decree-holders and is
directed against the judgment of the.High Court at
Calcutta setting aside the order of a learned Subordinate Judge at Ali pore dismissing the objection of a
judgment-debtor to the execution. The High Court
held that the decree having· earlier been executed in
full, the present proceedings for its execution were
incompetent and thereupon dismissed· the decreeholders' petition for execution. The question that
arises is whether the decree had earlier been executed
in full.
The facts appear to have been as follows :-One
Sukeshwari died sometime prior to 1944 possessed of
three plots of land which at all material times, bore
premises Nos. 26, 27 and 28, Dum Dum Cossipore
Road, in the outskirts of Calcutta. She left a will of
which defendants Nos. 1, 2 and 6 were the executors.
682
SUPREME COURT REPORTS
[1961]
z96o
The executors granted leases of these differe;1t plots of
Sh
B-,1 h 1 land to defendants Nos. 3, 4 and 5 respectively and
ew
ux.11oaa
•
.
& Others
put them m possess10n.
v
Certain persons called Mohatas whose interests are
Buzgal
Breweries represented by the appellants in the present appeal,
Ltd. & Others . claimed that Sukeshwari ·had only a life interest in
-
the lands which on her death had vested in thrm and
Sarkar ].
the executors had therefore no right to grant the
leases.
They filed a suit against the executors and
the tenants on September 15, 1954, in the Court of a
Subordinate Judge at Alipo{e for a decree declaring
that the defendants had no right to possess the lands
and for khas possess'ion by ev.icting the defendants
from the lands by removing the structures, if any, put '
up by them there. On March 30, 1948, the learned ·
Subordinate Judge passed a decree for khas possession
in favour of the Mohatas and gave the defendants six
months time to remove the structures put up on the
land. It is the execution of this decree with which
the appeal is concerned.
· Defenda1ft No. 3 appealed from this decree and
that appeal succeeded for reasons which do not appear
on the record. It is not necessary to refer to defendant No. 3 further as we are not concerned in this
appeal with him. It may however be stated that he
was in possession of premises No. 26 and no applica.
tion for execution appears to have been made against
Wm.
.
.
The executor defend an ts also a.ppealed from tlie
..
decree. The other two tenants, defendants Nos. 4
and 5, did not appeal. Of these tenants we are concerned only with defendant No. 4, the Bengal Breweries Ltd., a company carrying on business as
distillers. It was in possession of premises No. 27, on
which it bad built a factory for distilling liquor and
yeast.. Defendant No. 5 was in possession of premises
No. 28 on which stood some temples.
On September 22, 1948, the Mohatas, the decree.
holders, filed an application in the Court of the learned
Subordinate Judge for execution of the decree against
defendants Nos. I, 2, 4, 5 & 6.
On September 25, the
]earned Subordinate Judge passed an order in execution
•
...
I
1 S.C.R. SUPREME COURT REPORTS
683
issuing a writ for delivery of possession of premises
'9°
0
·Nos. 27 and 28 to the decree-holders by removing 51,,w u-::;Mohata
any person bound by the decree who refused to vacate
& Othm
the same and· fixed November 22 'for making the
v.
return to the writ. On September 28, the decree. Bengal
J.hcwe>·ies
holders applied to the lea.med Subordinate Judge for
Lid. & Othm
obtaining help from the police for' executing the
Sarhar J
decree. On September 29, tho executor defendants
applied for afshort stay of execution to enable them
to obtain a stay order from the High Court.
Defendant No. 4 also itself made an application for staying
the execution for two months to enable it to come to
an arrangement with the decree-holders in the meantime. On the decree-holders assuring the Court that
they would not execute the decree till 2 p. m. of the
next day these two petitions by the judgment-debtors
were adjourned till September 30.
On September 30, 1948, the two petitions for stay
were taken up for bearing by the learned Subordinate
Judge. With regard to the petftion by the executor
defendants, he observed that he had no power to stay
execution in view of 0. 41, r. 5, of the Code of Civil
Procedure and thereupon· di&missed that petition.
The petition for time by defendant No. 4 was also
dismissed but in n·spect of it the following observation appears in the order:
"The decree-holders
undertake that they will allow the company to carry
on normal business for six weeks from now by which
time the company will settle matter with the decreehulders ". Thereafter on the same day the decreehulders · de.posited in Court, the necessary costs for
police help for executing the decree and the learned
Subordinate Judge requested the police tu render the
necessary help on October 1, 1948. It also appears
th;;,t subsequently on the same day defendant, No. 4
filed another petition for stay of execution and.also a
petition under s. 47 of the Code objecting tu the execution, alleging that there was a tentative arrange.
ment between it and the decree-holders that it would
pay l'ts. 150 as monthly rent and it need nut file any
bi_.. peal to challenge the validity of the decree. The
decree-holders opposed these petitions by defendant
G84
Sl:PRE111E CO'CRT REPORTS
[1961]
196°
No. 4. Tho learned Subordinate J udgc ma•le no order
-
(11\ thmu but adjourned them to Xovembcr 11, l!J48,
Shew Liu• Mvhuta
h
r l th
h
, d ,
.
.
& 01,,.,,
11.s
o ie t
at t e matter require 1nvest1gat10n.
v.
On October 1, 1948, the i\ azir of the Court proceedIJe•gal
llmvmcs ed to prt•miseg Nos. 27 and 28 with certain police
Ltd. & 011,,,, ollicers to execute the decree in terms of the writ. Ho
found the gate of premises ~o. 27 closed but later the
Su•ka• f.
manager of defendant Xo. 4 opened it at his request.
Wha.t happened therm\fter appears from the return of
the Xe.zir which is in the following words: "Wo then
entered into the factory house aud delivered possession in each of the buildings at about I0-30 e.. m.
Before removal of the furniture and other movabl~s
from those buildings there was an amicable settlement
between the decree-holders and the manager of the
factory that the factory will run its normal business
e.s before for 6 weeks and in the mea11time the executive body of the factory will make settlement with
th~ r!P.cree-holdern and some of the decree holders'
men will remain th('re as guards". lt is admitted
that the decreA- hold1~rn' guards were ther('<t ft.er posted
on the premises.
The Xazir then μrocrnded to prcmise8 ?\o. 28 and
the return also Hhow8 I hat he delivered posHessiuu of
these premisPs to the decree-holders. Tho relevant
portion of the return is iu the8c words : "Then we
procccdf•d towards the premises X o. 28 (Old X o. 8)
consisting of 2 ll'mplc8 and found that the priest of
the temple wws present. He amic:~bly came out of the
compound a11d possession was delivered of the temples,
hrndH, tanks and other plots mentioned in-the writ."
After possession had b1!en dclivernd, the decrneholders executed on the same day a receipt in o.cknowledgmeut of possession h:wing been received by them.
That receipt is in these Lerm•:
.
" Heceivcd from Sri Bhabu.tarnn lfanerjee, ::\' aib
Nazir, District Judge's Court, Alipore, 24.Parganas,
delivery of posseRsion of premises :'\os. 7 i<11d 8 (formerly .Nus. 27 and 28) Dum Oum Cossipure Road in the
above execution case, this day at 10-30 a.m. including
all buildings, tanks, gardens and tcm pies, etc., all
these mentioned in the writ in its schedule."
'
1 S.C.R. SUPREME COURT REPORTS
685
The receipt by mistake describes the premises as
i96o
"formerly" Nos. 27 and 28 for the premises then bore «h
8
M 1 1
,
., ew
ux
o ui a
these numbers.
er, Others
It appears that at 11-15 a. m. on October l, 1948,
v.
the executor defendants moved the High CourL for a Bengal B"w"i"
stay of execution in the appeal filed by them from the
Ltd. ,r,, Others
decree. The High Court directed an ad interim stay.
After this order had been made the executor defendSarkar J.
ants moved the learned Subordinate Judge on the
same day for conseq uen tie.I orders on the strength of
the stay of execution granted by the High Court. The
learned Subordinate ,Judge thereupon made the
following order : " 111 the special circumstances recall
the writ provisionally. To 5th November, 1948, for
fresh consideration if forinal stay order is not received
in the meantime". This order was passed on the verbal representation of the lawyers for the executor
defendants that the High Court had directed the stay
of execution, for there had not been time for the High
Court's order to be formally drawn up and produoed
before the learned Subordinate Judge.
On November 22, 1948, which was the day fixed
for making the return to the execution of the writ, the
following order appears to have been passed by the
learned Subordinate Judge in the execution case:
"Possession delivered.
OnA third part.y has filed an
application under Or. 21, r. 100, C.P.C. Let the execution case be put up after the disposal of Misc. Casfl
No. 13 of 1948.'" The Miscellaneous Caso No. 13 of
1948 was the one started on t.he petition of the third
party under Or. 21, r. 100 of the Code, objecting to
his removal by the execution. This third party was
one Bhairab Tewari and he presumably was claiming
some right in premises No. 28 for there was no question of his making any claim to pl'emises Xo. 27
which were exclusively in the possession of defendant
No. 4.
The ad interim stay issued by the High Court on
October 1,. 1948, in the appeal filed by the executor
defendants, came up for final hearing and re8ulted in
thfl following order on January 21, 1949.
" If anything is due on account of costs which
()8()
Sl'.PREME COCRT REPORTS
[1961]
i96o
has not been paid, thftt. a.mount will be depositP.d in
,. r-u 1
the Court heluw by defendant :\" o. 4 (i.e., .Mr. Son's
·"'"~.';~·;";,;'"'"client) within :1 month from to rlay, and then three
,.
monl.h's time from to-da.y will he gh·en to him to
lle,,,;al
llmccm.' rl'!llil\'l' t lw machinerirH and varnte that portion of
1. 1•1 "' O•hn; the l:tnd in suit 1,·hich he i~ occupying ns a lessee and
which he is using now
:1H a brewery. In default of
the dt·.posit being made and al•o i11 default of vacating
tho prPmi><es ns dirrctcd ahoV<., this Rulo will stand
discharged.
We do not stn.y delivel'} of po8scssion in respect of
nnv otlwr item in which dr.fonda.nt No. 4 or Xo. I or
an:r other defendant save and except dcfen1fant No. 3
is intrrostcd."
The appearances of the partieH recorded in this order
do not show any
o.pp~aranee having been made
in connection with it by defendant. No. 4. It does not.
app~ftr fr1.m the records what other proceedings, if
nny, were ti1ken in the appeal by the ex(•cutor defendn,nts l1nl it is ngreed that that apveal was dismissed
0u :"rptcmber 8, 1954.
DefeuJant :\ o. 4 J id not vacate at the end of the
t.hree months mentioned in the order of .January 21,
W49.
The parties then took proceedings in Criminal
Courts under s. 144 of the Code of Criminal Procedure
a.nd other c01rnectPd provisions.
It is not necessary
t0 rnfer to these proceedings and it iH enongh• to state
thn.t thl'y did not :dl'eet the possession of premises
~o. 27 by dcfonda.nt Xo. 4, who continued in posscssio:1 till tho United Bank of India. Ltd. took over
possession as hereinafter stated.
On September 8, 1949, the following order was
made by tlie learned Subordinate Judge in the execution case:
" Decree-holder takes no other stops. Possession
so far as regards tho Bengal Broweries a.re concerned,
delivered.
Ordered
that the ex1,cution ca.so be dismissed on part satisfaction."
Ou September 27, 1951, the decree-holders ma.de a.
1 S.C.R. SUPREME COURT REPORTS
. 687
fresh application for execution aga.inst defendant No.
r96o
4 alone by evicting it from premises No. 27.
Defend- Sh
B--M h 1
ant No. 4 put in an objection against the execution
ew & ~~her; a a
under s. 4 7 of the Code alleging that so far as it was
v.
concerned, the decree had been fully executed as a Bengal
Breweries
result of the earlier execution proceedings which
Ltd. '" Others
terminated by the onl!Jr of September 8, 1949, and
I
I
Sarkar J.
that further execution was not permissible in aw.
t
is out of this objection that the present appeal has
arisen and the question for decision is whether the
objection to the execution so mised, is sound.
As
earlier stated, the learned Subordinate Judge dismissed the objection to the execution but on appeal the
High Court set aside his order and dismissed the petition for execution. The High Court granted a certificate for an appeal to this Court on June 15, 1956 and
on August 3, 1956, the High Court passed an order
directing that the appeal be admitted.
On August 11, 1960, an order was made by this
Court adding three persons named Moo! Chand Sethia,
Tola Ram Sethia and Hulas Chand Bothra as parties
respondents to this appeal. The order however provided that the appellants decree-holders would have
a right to object· to the locus standi of these persons
in the appeal. At the hearing before us only these
added parties appeared . to contest the appeal. The
appellants have raised a preliminary objection that
the added parties have.no locus standi and cannot be
heard in the appeal.
It appears that defendant No. 4 had executed three
successive mortgages oJ premises No. 27 with all
structures and appurtenances, to a bank called the
Comilla Banking Corporation Ltd. The first of these
mortgages had been executed on May 25, 1944, and
the other two mortgages had been executed after the
suit in ejectai.ent had been filed but before that suit
had been decreed. The assets of the Comilla Banking
Corporation Ltd. became subsequently vested in the
United Bank Limited. Some time in 1953, the United
Bank filed a suit for enforcement of the mortgages.
On May 30, 1955, a final mortgage decree was passed
88
688
SUPREME COCRT REPORTS
[1961]
' 960
in favour of the United Bank. On July 20, 1956,
Shrw n .. x MaJ.ata the mortgaged properties were put up to auction and
& 011.m
purchased by the United Bank. On March 1, 1958,
v.
the mortgage sale was confirmed and subsequently
DrnK•I
Drtimirs the United Bank was put in possession of premises
I.td. r- 01""'' Xo. 27.
On July 13, 1960, the United Bank convey.
Sarkar 1.
ed premises No. 27 along with all structures and
appurtenances and all its right, title and interest
therein to these added respondents. It is by virtue
of this conveyance that the added respondents obtain.
ed the order from this Court dated August 11, 1960,
mo.king them parties to the appeal. Defendant No. 4,
the Bengal Breweries Ltd., is now in liquidation and
it has not entered appearance to this appeal nor takon
· any steps to defend it.
·
It appears to us that tho added respondents were
properly brought on record. The decision of this
Court in Saila Bala Dassi v. Nirmala Sundari Dassi (1),
supports that view. There it was held that an appeal
is a proceeding within the meaning of s. 146 of the
Code and the right to file an appeal carried with
it the right to continue an appeal which had been
filed by tho person under whom the appellant claimed
and on this basis a purchaser from the appellant
under n. purchase made prior to the appeal was
brought on the record of the n.ppeal.
We think that
on the same principle the added rrspondents in the
case bofore us were properly brought on the record.
lt iH not in dispute that if the decrco waH .once
cxccntnd againRt dcfPndo.nt No. 4 in full, then it, cannot be exccutr.d over again regarding premises l'i'o. 27.
1 n other words, if possession ho.d been fully delivered
to the decree.hol<lers in execution of tho decree on
Octoher I, l!J48, tho decree muHt have been wholly
so.fri!ie<l and nothing remains of it for enforcement by
further exccut.ion. The tlccrco was for khas possession
and un<lcr Or. 21, r. 3:i, of this Code in execution of
it possession of the propPrty concerned had to be
delivered to the decree-holders, if necessary, by removing any person bound by the <lecree who refused to
vD.catc tho property. The records of the proceedings
(1) {1958] S.C.R. 1287.
•
1 S.C.R. SUPREME COURT REPORTS
689
show that such possession was delivered. Defendant
'960
No. 4 was the party in possession and bound by the Sh
B-M h. t
,
d f d
N
4 h
d
ew
ux
o a a
decree. With regard to
e en ant
o.
, t e or er
& Others
made on September 8, 1949, states, "Possession so far
v.
as regards the Bengal Breweries are concerned, deli- Bengal
Breweries
vered." This is an order binding on the decree-holders.
Ltd. & Others
It has not been said that this order was wrong nor
h
.
'd
Sarkar ].
any, attempt made at any time to ave 1t set as1 e or
to challenge its correctness in any manner. The same
is the position with regard to the order of November
22, 1948, recording on the N azir's return that posses•
sion had been delivered in terms of the writ.
The order of September 9, 1949, no doubt further
states, "Ordered that the execution case be dismissed
on part satisfaction". The words "part satisfaction"
in this order, however clearly do not refer to part
satisfaction. as against defendant No. 4, the Bengal
Breweries, for the order expressly states, "possession
so far as regards the Bengal Breweries a.re concerned,
delivered." The decree had therefore been satisfied in
full as against the Bengal Breweries Ltd. and consequently as regards premises No. 27 in its possession ..
Even the learned Subordinate Judge who held the
execution maintainable found that" the decree-holders
had no doubt previously got possession". Notwithstanding this, the learned Subordinate Judge decided
· that the decree could still be executed as he took the
view that at the. hearing before the High Court on
January 21, 1949, defendant No. 4 "must have ignored the delivery of possession by the Na.ib Nazir and
he cannot now be heard to say that the delivery of
possession by the Na.ib Nazir was legal and valid".
For reasons to be stated later, we are unable to agree
with this view.
·
It is true that tho Nazir's return showed that defendant No. 4 had not been bodily removed .. But the
same return also shows that it.had not been so removed because of certain·arrangement arrived at between
it and the decree-holders and as the decree-holders
bad not required the removal of defendant No. 4 from
the premises. Now under Or. 21, r. 35 a. person in
possession and bound by the decree has to be removed
690
SUPREME C'OVRT REPORTS
[l!l61]
i96o
only if neccRsa.ry, tha.t is to sa.y, if necessary to givo
Sh
1,-H 1 1 the decree-holder the pos!;e.ssion ho is entitled to and
•w .s. ~:.;,;'" "a.sks for.
It would not be necesHa.ry to remove the
v.
person in possession if the decree-holder doos not want
Bengal
Dreu·mu such removal. It is open to tho decree-holder to
Ltd. 6- Others
SarAar ].
accept delivery of possession under that rule without
actual removal of the person in poss~ssion. If he docs
that, then ho cannot later say that he has not been
given that possession to which ho was entitk<l under
the law. This is what happened in this ca.so.
Tho
decree-holders in the present ca.so, of their own accepted delivery of possession with defoudant No. 4 remaining on the premises with their permission. They
granted a receipt a.cknow !edging full delivery of possession. They permitted tho cxeeution case to be dismiBBed on September 8, 1949, on the basis that full possession had been drlivcrcd to them by defendant No. 4.
'l'hc fa.ct that they put their guards on the premises
as me11tioned in. the N azir's return would a.lso show
tha.t they had obtained full possession. It was open
to tho decree-holders to accept such possession.
Having once done so, they a.re bound t-0 the position
that the decree has been fully executed, from which it
follows 'that it cannot be executed any more.
In the
case of Maharaju Jagadish Nath Roy v. Nafur Chandra
Parmanik (') an exactly similar thing had happened
and it was held that tho decree was not ca.pa.ble of
further execution. - It was them said at p. 15,
"Tho case, therefore, seemH to me to be one of
those cases in which a decree-holder having armed
himself with a decree for khas poRscssion oxecutos that
decree in the first instance by obtaining symbolical
possession only with somo ulterior object of his own,
and thereafwr subsequently and as a second instalment asks for
kha.s possession. Tho question is
whether such a. course is permissible under the law. I
am of opinion that it is not".
·
We entirely agree with the view tha.t was thero
expressed.
The lea.med Solicitor-Gcm•rnl appearing for tho
appellants contended that the order of September 30,
(1) (1930) 35 C.W.N. 12.
1 S.C.R. SUPREME COURT REPORTS
691
1948, shows that the decree-holders had undertaken
1960
to allow defendant No. 4 to carry on normal business Shew Bu• Mahala
for six weeks and therefore, on October 1, 1948, when
& Others
they proceeded to execute the .decree, they were not
v.
seeking to execute it in full by removing defendant Bengal
Breweri
No .. 4 from possession. He said that the execution on
Ltd. "" Others
October 1, 1948, wa.s therefore not complete as defenda.nt No. 4 ha.d not been removed pursuant to the
undertaking given on September 29, 1948.
We are
unable to read the order made on September 8, 1949,
or the N azir's return and the receipt granted by the
decree-holders in a. manner contrary to the plain
meaning of the words used in them, because of the
undertaking. Further, it is not the case of the decreeholders that that order, the N azir's return or the
receipt is incorrect or had come into existence through
any misapprehension. The legality or correctness of
none of these was ever nor is now challenged. The
order of September 8, 1949, is binding on the decreeholders and they cannot now go behind its terms. For
the same reason, neither ca.ii they go behind tho order
of November 22, 1948, recording in terms of t-he
Na.zir's return that possession had been delivered .
. It further seems to us that if the undertaking meant
that defendant No. 4 was ·not to be removed from
possession, then the execution would have been stay~d,
which it was not, for the only way in which it was
possible to execute the decree was by removal of
defendant No. 4 from possession as it was alone in
actual posses11ion, the executor defendants claiming
only rent from it as landlord. Then again the order
in which the undertaking appears, also st.ates that the
stay of execution against defendant No. 4 as asked by
it, was refused. Besides this, the order sheet shows
that immediately after the order stating the undc1·-
taking had been made another order was made on the
same day acknowledging receipt from the decrceholders of the costs of the police for helping the execution and directing that the police might be approached
to render any help•necessary on October 1, 1948, at the
time of the execution of the decree. Tlie only possible way to reconcile all the various orders, tho return
Sarka.r ].
692
SlJPHE:.'\lE COURT REPOBTS
[ 1961 J
•
1960
and the receipt, is to proceed on thC' basis tha.t by the
S '
IJ-.1 ,
undertaking tho decree-holdors agreed tha.t after they
fftW
&IX
.~ 0114lti h
.
·
.,_ Olhm
ad ta.knn possosR1on, they would a.llow defendant
v.
No. 4 to continue its business on tho premises for six
BwK•I n"w"i" wooks with their permission. Such undertaking doos
Lid. & Othm not show that it wa.s not intended to remove defen.
Sarkar J.
da.nt No, 4 from possession.
The lea.med Solicitor-Genera.I also contendod that
the fact that the undertaking wn.s confined only to a
p_eriod of six weeks would show that the decree. holders
were not permitt~ng defendant No. 4 to continue in
posseBBion after they had obtained possession from it,
for then no period would have been mentioned.
We
a.re unable to accept this argument for there is nothing
to prevent the decree.holders after they ha.d obtained
possession undor the decree, to grant permission to
defendant No. 4 to continue in
pos~«ossion for any
period they liked; such permission could be for six
wooks or for any longer or shorter period as the
decree-holders thought fit.
The learned Solicitor.Gennral then contended that
the case was ooo where the decree had been partly
executed on one day and execution had been stopped
on that day for want of time or other reason, with the
object of continuing it on a subseqm•nt day. In such
a. case, he sa.id, there would be nothing to prevent
subsequent execution of the Hamo decree. lt does not
seem to us that the present case is of this nature, Tho
orders and documents oo the record a.re against this
view. The further execution is not in the course of
the earlier execution but is a. fresh execution.
Tho
interrruption in the execution was for over two yea.rs.
Apart from other things, tho placing of their own
guards on the premises by thti decree-holders could
only be on the basis that they had ta.kon posHossion.
'fhe lea.med Solicitor-General said that the guards had
been put there with the permillllion of defendant
Xo. 4.
The Nazir's return is entirely against such a.
view.
Indeed, it is difficult to sec why defendant
~o. 4 would ptirmit the decree-holders' guards on tho
premises unless it. was on tho ha.sis that possession
had been taken by the dccroo-holders and tho guards
1 S.C.R .. SUPREME COURT REPORTS
693
were there to protect their possession. The guards
I960
were subsequently removed but it does not appear Shew n-::x-Mohata
from the records in what circumstances they were
o;. Others
·
removed.
·
v.
Nor do we think that the order of October 1, 1948, Bengal
B"weries
assists the de~ree-holders. That order directed ·the
Ltd. "' Others
writ to be recalled provisionally.
The order was
Sarkar J.
wholly infructuous for the writ had earlier been duly
executed. The learned Subordinate Judge himself
came to that finding.
This, as we have said, is also
clear from the records of the execution case. The
writ could not be recalled after it had been executed
fully. Nor does the order establish that the· decree
had been executed in part only. The writ was not in
fact recalled before the decree had been executed in
full. The order of September 8, 1949, makes it impossible to hold that the writ was recalled after it had
been executed in part only.
The other argument advanced by the learned
Solicitor-General was based on the order of the High
Court dated January 21, 1949. It was said that that
order ipdicated that the decree had not been executed
by removing defendant No. 4 from possession because
it, in substance, was an order for a stay of execution
of the decree. It was also· said that the order must
have been on the baRis of a representation by defen.
dant No. 4 and a finding that the decree had not been
executed by removing defendant No. 4 from 'possession. The contention was that that finding and
representation was binding on defendant No. 4 and
therefore on the added respondents and further that
having obtained the order on the basis that it had not
been ousted from possession in execution, defendant
No. 4 and hence the added respondents, could not be
permitted to approbate and reprobate that position
and now be heard to say that the decree had been
executed in full.
We think that both these contentions are ill-founded. Tbe order is far from clear. We have already
pointed out that there is nothing in it to show that
defendant No. 4 had asked for 8.ny. stay. Defendant
No. 4 had not appealed from t~ ·decree. It was not
,
694
SUPREME COURT REPORTS
[1961]
1960
entitled to a sta.y of the execution of the decree. It wa.s
"' . , n-·r , 1 in possession of tho prt•rnise.q with the permission of
°'"'"
u.T " """
0 h d
h 11
T
' ·
h--'
' '
& 0 ,1,,,,
t e ecrne- o < ers.
ho permt•ston ..u imtta.lly hecn
v.
for six weeks which period had expired. [t. was ex11cnBenga1
B"w"i" tor dcfondants who had obtained a.n ad interim stay
Ltd. "'Othm frorn the High Court on October I, 1948. This orrl~r
-
wa.s infruotuous beca.11se fort.yfive minutes prior t.o the
sa,Jtar 1.
time tha.t it wa.s made, the decree ha.d been executed
in full. In those circumsta.nces the Court on January
21, 1949, ma.y he a.t the request of defenda.nt No. 4,
gave it three months' time to va.ca.te the premises.
The request, if a11y, by defendant No. 4 docs not
involve a representation tha.t the decree had not been
oxecutfld in full.
It rnay, at most; mean tha.t the six
weeks' permission initially gra.nted by the decreeholders might be further extended. With regard to
the other contention, namely, that the order of January 21, l!l49, a.mounted to a finding tha.t the decree
ha.d not heen 1ixec11ted in full, we ha.ve to point out
that no such finding appears on the face of it. The
order was made on an interlocutory proceeding and
wa.s only in a.id of tho final decision in the appeal.
The proc1•ecling in which the order was. made did not
involve a decision of the issue whether the decree had
earlier been executed in full.
No finding on such an
issue ca.n therefore be impliPrl in the order. This
ordor doe~ not in our view in a.ny wa.y prevent the
a.ddcd respondents from contending that the decree
ha.d been executed in full.
In the rrsult. this appeRI fo.ilR and it is dismissed.
W c do not think it fit to tnl\kP- any order as to costs.
Appeal dismissed.