Bhera v. Neta — 1956 DIGILAW 244 (RAJ)

This is an appeal arising out of certain execution proceedings which were taken in the court of the S.D. O., Sojat. In the course of the execution proceedings the learned S. D. O. directed on 25.11.1955 that the appellants be detained in the civil prison for a period of 5 days in order to enable the decree-holder to obtain possession of the land in dispute and a warrant of arrest be issued against them. Aggrieved by the order of the learned S. D. O. the appellants went up in appeal to the learned Additional Commissioner, Jodhpur. After controverting the contentions raised on behalf of the appellant the learned Additional Commissioner came to the conclusion that the decree passed by the learned S. D. O. was not incapable of execution on account of vagueness. The fields in dispute could be clearly identified from the description which was given in great detail in the plaint filed by Neta respondent and in the judgment which followed upon it. The defendants, in the original suit have filed a second appeal in the Board impugning the propriety and legality of the order of the Additional Commissioner, dated 3.5.1936 and that of the S. D. O., dated 25.11.1955. 2. We have heard the learned counsel appearing for the parties and have also examined the record. The facts which are relevant to the decision of this appeal lie within a short compass and may be briefly stated as follows :—Neta decree-holder, applied to the learned S. D O. Sojat on 10.12.1955 for execution of the decree passed in this favour. On 15.9.1955 the learned S. IX O., issued a warrant for possession over two fields as well as for the amount of compensation which had been decreed against the judgment-debtors. The warrant was entrusted to Sowar Johar Singh for execution. He went to the spot and in the presence of a few respectable persons delivered possession of the fields in question to Neta, decree-holder, on 3.10.1955. He recorded a memorandum from which it is abundantly clear that possession of the fields in dispute was given to the decree-holder, though the judgment-debtors did not appear inspite of being called repeatedly to the spot. The warrant was returned to the court concerned after execution. He recorded a memorandum from which it is abundantly clear that possession of the fields in dispute was given to the decree-holder, though the judgment-debtors did not appear inspite of being called repeatedly to the spot. The warrant was returned to the court concerned after execution. On 6.10.1955 the learned S. D. O. recorded an order that though possession over the fields in dispute had been given to the decree-holder he had failed to furnish a receipt indicating that he had received possession over the fields in dispute. He was, therefore, directed to appear before the court on the next date of hearing. On 16.9.1955 the judgment-debtors filed an application before the learned S. D. O. requesting him to stay execution proceedings because the decree which had been passed was incapable of execution as it did not contain a description of the fields in dispute and so long as their identity was not clearly determined possession over the fields could not be delivered to the decree-holder. The learned S. D. O. rejected the application on 10.11.1955 on the ground that the objection raised in it was clearly untenable. An application was presented by the decree-holder on 12.10.1955 alleging that though the Sowar, who had been entrusted with the execution of the warrant, had asked him to take possession of the fields in dispute he had not done so. After the process-server had left he went to plough the fields in dispute and the judgment-debtors did not permit him to do so. He had, therefore, not furnished any receipt to the process-server in token of his having taken over possession of the fields in dispute. He requested the court to issue another warrant. The learned S. D. O. passed an order to that effect. The Amin who went to the spot in order to execute the warrant, submitted a report that the fields in dispute had been ploughed over for a couple of days by the decree-holder when they went to the fields on 12.11.195 5 in order to sow a crop, they were driven out by the judgment-debtor and other persons. On this report the learned S. D. O. directed on 25.11.1955 that as the judgment-debtors were willfully obstructing delivery of possession they be detained in the civil prison for a period of 5 days. 3. On this report the learned S. D. O. directed on 25.11.1955 that as the judgment-debtors were willfully obstructing delivery of possession they be detained in the civil prison for a period of 5 days. 3. A preliminary objection was taken by the learned counsel for the respondents that no appeal lay against the order of the S. D. O., dated 25.11.1955, much less a second appeal. The learned counsel for the appellants invited our attention to the provisions of secs. 47 and 2 (2) of the C. P. C. The latter section provides that a decree shall be deemed to included the determination of any question within sec. 47. The relevant portion of sec. 47, C. P. C. runs as follows:— "All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit." The point which falls for determination is whether an order passed by the learned S. D. O. on 25.11.1955 amounted to a decree. It cannot be gainsaid that this order relates to the execution of the decree and falls within the ambit of sec. 47. As is clear from the wording of sec. 2 sub-sec. (2) this order which relates to the execution of a decree and falls within sec 47 shall be deemed to be a decree. As such an appeal would lie from it under sec. 96 of the G. P. C. The preliminary objection is clearly untenable and is, therefore, overruled. 4. It was contended on behalf of the appellants that the learned S. D. O. was not justified in directing that the appellants be sent to the civil prison for a period of 5 days without serving a notice upon them and giving them a reasonable opportunity of being heard. In passing the order without complying with these formalities he had apparently violated the provisions of see. In passing the order without complying with these formalities he had apparently violated the provisions of see. 21, R. 98, C. P. C„ which provide that where the court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation it shall direct that the applicant be put in possession of the property and where the applicant is still resisted or obstructed in obtaining possession the court may also at the instance of the applicant order the judgment debtor or any person acting at his instigation to be detained in the civil prison for a term which may extend to 30 days. His order was, therefore, manifestly illegal and deserved to be set aside in appeal. It was further urged that as was clear from the report of the process-server, dated 3.10.1955 possession of the fields in dispute had been delivered to the decree-holder and the decree had been completely executed. It could not be executed a second time, nor was the learned S. D. O. justified in imagining that because the decree-holder had not furnished a receipt in token of his having received possession from the judgment-debtors the decree had not been executed. It was also contended that even if it be assumed that the decree had not been properly executed it could not be executed again because it did not contain a description of the fields and w,as, therefore, incapable of being executed on account of vagueness It was also argued that the learned S. D. O. was not justified in overruling the objection of the judgment-debtors that they alone were not in possession of the fields but as they were holding them jointly with others they did not incur any responsibility of those persons who were not bound by the decree offered resistance or obstruction to its execution. 5. On behalf of the respondents it was urged that as the judgment-debtors had not raised any objection in the courts below that the decree had been executed it could not be taken in second appeal. It was a mixed question of law and fact. The judgment-debtors should be deemed to have waived this objection. 5. On behalf of the respondents it was urged that as the judgment-debtors had not raised any objection in the courts below that the decree had been executed it could not be taken in second appeal. It was a mixed question of law and fact. The judgment-debtors should be deemed to have waived this objection. It was also contended that as was clear from the findings of the learned S. D. O. possession of the fields in dispute had not been delivered to the decree-holder and, therefore, the decree could be executed. The learned counsel in support of his contention relied on A. I. R. 1931 Lah. 686 and A. I. R. 1931 Cal. 427. 6. For a proper decision of the points involved for determination in this appeal it is necessary to deal with the contentions raised before us on behalf of the parties at some length. 7. Dealing with the first contention on behalf of the appellants we may observe that the learned S. D. O. does not seem to have complied with the provisions of Order 21, R. 98. This rule applies only to cases where the judgment-debtor or any person at his instigation resists delivery of possession without any just cause. It is incumbent upon the court to decide the existence or otherwise of just cause on the evidence before it. After being satisfied that the resistance or obstruction was occasioned without any just cause the court has to issue a fresh order for delivery of possession. If such order is resisted then the court has the power to commit the judgment-debtor or other person acting at his instigation to the civil prison on an application by the person obstructed. We have perused the orders passed by the learned S. D. O. on different dates. We have not come across any order which could indicate that the S. D. O. had complied with the provisions of R.98. Without complying with these provisions he was not justified in directing that the judgment-debtors be detained in the civil prison. 8. We have perused the orders passed by the learned S. D. O. on different dates. We have not come across any order which could indicate that the S. D. O. had complied with the provisions of R.98. Without complying with these provisions he was not justified in directing that the judgment-debtors be detained in the civil prison. 8. The second contention turns on the construction which is to be placed upon O. 21, R. 35 (1) which runs as follows :— "Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property." This rule and R. 36 point out the mode of execution of decrees for possession of immovable property. Rule 35 provides that where the property is in possession of the judgment-debtor or some one on his behalf possession shall be given, if necessary, by removing the judgment-debtor or any person bound by the decree and placing the decree-holder in occupation of the same. But if the property is of such a nature that the decree-holder cannot be put in actual possession of it as for instance where the property is in the possession of a tenant, then the delivery should be effected by the officer of the court by going through the process prescribed in R. 36 and proclaiming to the occupant of the property that the possession had been given to the decree-holder. The former kind of delivery is called actual possession while the latter is called symbolical or formal delivery of possession. These rules do not require test for delivery of possession it is necessary that the decree holder should furnish a receipt in token of his having accepted possession. The provisions of RR. 35 and 36 indicate that if possession has been delivered to the decree-holder in the manner prescribed by these Rules the mere fact that a decree-holder has failed to furnish a receipt would not militate against delivery of possession nor would it show that possession had not been delivered to the decree-holder. Ever symbolical possession is as effective against the judgment-debtor as his physical removal from a field. Ever symbolical possession is as effective against the judgment-debtor as his physical removal from a field. In the present case as is clear form the report of the process-sever, dated 3.10.1955 possession was actually delivered to the decree-holder on that date. The decree-holder applied to the court on 12.10.1955 indicating that he had not received possession. If a decree holder to whom possession of a field is given is subsequently obstructed in ploughing it he cannot turn round and contend that as he had not received possession the decree should be executed again. One possession had been delivered to him whether actual or symbolical the decree would be deemed to have been executed and it could not be executed again. If an authority is needed for the proposition set out above it will be found in A. I. R. 1917 P. C p. 201 ; A. I. R. 1931 Cal. 427 ; A. I. R. 1948 Patna p. 417 and A. I. R. 1950 Pepsu 22. In the Calcutta and Patna cases it was held that where symbolical possession was delivered of immovable property in execution of a decree to the person entitled to actual possession thereof it was to be deemed to be equivalent to actual possession as against the judgment-debtor. The ratio decidendi of these cases is that between parties to a suit or a proceeding symbolical possession in certain circumstances is considered equivalent to actual possession. In the present case there is sufficient material before us which indicates beyond any manner of doubt that actual possession, as was reported by Sowar Johar Singh was delivered to the decree-holder. The learned S. D. O. was, therefore, not justified in going back upon the factum of delivery of actual possession on the ground that the decree-holder had not furnished a receipt to indicate his acceptance of such possession. Proceedings subsequently carried out by him were clearly untenable. Even if we assume for the sake of argument that possession had not changed hands as was alleged by the decree-holder subsequently, the fact remains that the learned S. D. O. did not observe the formalities laid down in O. 21, R. 98 before ordering the detention of the judgment-debtors in the civil prison. 9. The third contention turns on the identity of the land in dispute. 9. The third contention turns on the identity of the land in dispute. The description of the land can be gathered not only from the plaint but also from the judgment. As laid down in sec. 33, C.P.C. the court after the case has been heard shall pronounce judgment and on such judgment a decree shall follow. This section casts on the court the duty of preparing and passing a decree. Where a judgment is pronounced the decree must automatically follow it. This contention is appartently devoid of force because if the warrant did not contain a description of the property it could not have been possible for the process-server to deliver possession of it as was actually done by him. This alone would indicate that it was not difficult to identify the property and to deliver its possession to the decree-holder in execution of the decree. 10. We now turn to the last contention raised on behalf of the appellants. It was to the effect that the learned S. D. O. was not justified in overruling the objection raised by the judgmeat-debtors that they were holding property jointly with others who were not bound by the decree. If the judgment-debtor makes over possession of the property during the pendency of a suit to another in order to prevent the execution of a decree subsequently, this transfer which takes place in a mala fide manner, would not affect the position as it stood before the litigation started. The learned S. D. O. was justified in overruling the objection raised before him by the judgment-debtors. His decision on the point cannot be characterised as being manifestly illegal. He was entitled to draw an adverse inference against the judgment-debtors from the material which was placed before him and which indicated beyond any shadow of doubt that they, if left to themselves, would not be anxious to part with the possession of the land in execution of the decree. 11. After having dealt with the contentions raised on behalf on the appellants we proceed to consider those which were raised before us on behalf of the respondents. It is correct that on questions of fact largely depending on oral testimony conclusions of the trial court will not be lightly interfered with in appeal. But this rule is not to be treated as having a too general application. It is correct that on questions of fact largely depending on oral testimony conclusions of the trial court will not be lightly interfered with in appeal. But this rule is not to be treated as having a too general application. An appellate court is entitled to interfere with the questions of fact where the conclusions of the trial court depend on inferences from facts and not on the credibility of oral evidence about the existence of such facts. Again questions of law can certainly be raised and considered in second appeal. In this case whether possession had actually changed hands and whether from the facts it could be inferred that failure on the part of the decree-holder to furnish a receipt invalidated delivery of possession could be gone into in second appeal. It is true that ordinarily a court of appeal will not interfere with the exercise of discretion by the lower court and substitute for it its own discretion. An interference, however, will be justified where the lower court acts arbitrarily or perversely or capriciously in disregard of sound legal principles. In this case, as we have pointed out above the learned S. D. O. completely ignored the provisions of O. 21, R. 98. He could certainly exercise the discretion given to him as is denoted by the use of the word "may" in Rule 98 in accordance with sound judicial principles. The exercise of discretion, as is clear from the wordings of Rule 98 depends on a variety of circumstances such as the satisfaction of the court that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation direction by the court that the applicant be put into possession of the property, resistance or obstruction by the judgment-debtor to the applicant in obtaining possession, and request by the applicant to the court to move in the matter. Where different stages in the process are not covered the court cannot exercise its discretion against the judgment-debtor by ordering his detention in the civil prison. As laid down by their Lordships of the Privy Council in Nafar Chandra Pal vs. Shakur, ((1918) 45 Indian Appeals, 183) questions of law and of fact are some times difficult to disentangle. The proper legal effect of a proved fact is necessarily a question of law. As laid down by their Lordships of the Privy Council in Nafar Chandra Pal vs. Shakur, ((1918) 45 Indian Appeals, 183) questions of law and of fact are some times difficult to disentangle. The proper legal effect of a proved fact is necessarily a question of law. So also is the question of admissibility of evidence and the question whether any evidence has been offered on one side of the other. But the question whether the fact has been proved, when evidence for or against has been properly admitted, is necessarily a pure question of fact." Broadly speaking a question of fact may be defined as anything which is the subject of testimony and is capable of proof and is not a question of law. A question of law is the general law of the land general principles of law of which courts will take judicial cognizance. Sir John Salmond in his learned treatise on Jurisprudence defines a question of law as follows— (1) It means in the first place a question which the court is bound to answer in accordance with a rule of law. (2) In a second and different signification a question of law is a question as to what the law is. Questions of law in this sense arise not out of the existence of law but of its uncertainty. (3) There is still another and third sense in which a question of law means a question that is within the province of the Judge as opposed by the jury. A question of facts is any question which is not a question of law or of judicial discretion. In this connection a reference should be made to the definition of fact in the Indian Evidence Act. Under section 3 of that Act fact means and includes (1) anything, state of things, or relation of things, capable of being perceived by senses ; (2) any menal condition of which any person is conscious. A question whether any such fact exists or does not exist is a question of fact and a finding thereon is finding of fact. An inference of fact should be distinguished from an inference of law. Where from evidentiary facts and documents an inference is drawn as to the existence or non existence of another fact then the inference is one of fact and the question as to the inference a question of fact. An inference of fact should be distinguished from an inference of law. Where from evidentiary facts and documents an inference is drawn as to the existence or non existence of another fact then the inference is one of fact and the question as to the inference a question of fact. But when the question is whether certain facts give rise to a legal right or lability the inference is one of law, and the question of such inference a question of law. Even an inference of fact must be drawn in a legal manner, i.e. in a manner neither unreasonable nor illogical nor unwarranted by the facts from which it is drawn. If not so drawn it is an error of law. The question, therefore, whether an inference of fact is reasonable or is warranted by facts is also a question of law. A mixed question of law and fact is one where in order to give a finding thereon it is necessary to answer a question of fact and also a question of law and fact will be open to second appeal whether the lower appellate court has committed an error on the matter of law involved in the mixed question of law and fact, but not, if it has committed an error only on the matter of fact so involved. (See Chitaleys commentary on sections 100 and 101, Vol. I., C.P, pages 1022 and 1024). Keeping these broad principles in view we may observe that in the present case the trial court certainly went astray in holding that as the decree-holder had not furnished a receipt indicating his acceptance of possession, possession should not be deemed to have been delivered to the decree-holder. The finding of the trial court was certainly based on a misconception of the provisions of Order 21, Rule 35. In this case actual possession as we have pointed out above, had in fact been delivered to the decree-holder The absence of the judgment-debtor from the scence would not make any difference. There is no provision of the law that in executing a warrant for possession under clause (1; of Rule 35 the consent of the judgment-debtor is essential or that it is obligatory upon the decree-holder or the executing official to apprise the judgment-debtor of the fact that possession has been delivered to the decree-holder. There is no provision of the law that in executing a warrant for possession under clause (1; of Rule 35 the consent of the judgment-debtor is essential or that it is obligatory upon the decree-holder or the executing official to apprise the judgment-debtor of the fact that possession has been delivered to the decree-holder. All that is necessary under the law is the delivery of possession to the decree-holder, and if any resistance by a person bound by the decree is offered, to remove him from possession thereof. In the present case, no such resistance was offered and in the circumstances the provisions of the law set out above were duly complied with, The warrant was properly executed and possession delivered in a lawful manner. If any authority is needed for the proposition set out above it will be found in A.I. R. 1933 Lahore 22 on which decision the learned counsel for the respondents has placed implicit reliance. Again it was not necessary under the law for the decree-holder to furnish a receipt indicating that he had received possession. In A. I. R. 1931 Calcutta 427, it was specifically pointed out that a receipt if furnished by the decree-holder should be read as merely reciting what the executing official had done. In the words of the learned Judge "I do not lay much stress on the receipt that was given on his behalf for the receipt may in any case be read as merely reciting what the peon had done". If a decree-holder points out to the executing official at the time possession is delivered to him that he has not received actual possession or repudiates it in clear words on the ground that possession given to him was not sufficient for a cogent reason then it can be said that possession has not been delivered to him. On the returnable dated fixed for the warrant it was the duty of the decree-holder if he was dissatisfied with what the executing official had done to ask for a fresh and proper execution of the warrant by delivery of actual possession. In the present case, the decree-holder did not appear before the executing court until a few days after the return of the warrant. In the present case, the decree-holder did not appear before the executing court until a few days after the return of the warrant. Whether failure on his part to furnish a receipt would invalidate the delivery of possession which had taken place is a question of law which can certainly be gone into in second appeal. The inference drawn by the executing court that delivery of possession had not taken place because the decree-holder had not furnished a receipt was based upon an erroneous view of the law and is certainly open to question in second appeal. Again the executing court had committed a substantial error or defect in the procedure laid down in Order 21, Rule 98. The appellants cannot be said to have waived a plea which was based not so much on a question of fact as on a question of law. 12. Turning now to the authorities cited by the learned counsel for the respondents in support of his contention that as there was no acceptance by the decree-holder of possession it should be deemed that actual possession had not been delivered to him, we have carefully examined these authorities. Instead of helping the respondents these authorities, support the case of the appellants that from the conduct of the decree-holder it could be inferred that he had not repudiated possession which had been delivered to him at the time when the land in dispute was ploughed over by his men. From the discussion given above it would appear that the contentions raised by the respondents are clearly devoid of substance. We are further of opinion that the executing court, was not justified in the circumstances of the case to order detention of the judgment-debtors in the civil prison. We, therefore, allow this appeal and quash the order of the executing court, dated 25.11.1955 and that of the learned Addl. Commissioner dated 3.5.1956 and direct that the application, dated 12.10.55 filed by the decree-holder shall stand dismissed, as the decree had already been executed by delivery of actual possession. Taking into consideration the peculiar circumstances of the case we refrain from making any order as to the costs.