SARJOO PROSAD, C. J.: This is an appeal by the decree-holder, and it arises out of an execution case. The facts leading to this appeal may be briefly stated as follows: (2) The decree-holder obtained a decree for delivery of possession and compensation against the judgment-debtor on 21-12-1950. He levied ex­ecution of the decree in Execution Case No. 16 of 1951, in which he prayed for possession and realisation of the compensation decreed. A writ for deli­very of possession was issued in favour of the decree-holder, and though on one occasion it was returned unserved, it appears that on the second occasion the Nazir purported to give delivery of possession to the decree-holder on 15-12-51 and sub­mitted a report to that effect. The Court, then recorded an order saying that possession had been delivered, and dismissed the execution case. It may Be stated that during the pendency of the ex­ecution case, the judgment-debtor had filed an appeal against the decree under execution, but there was no stay of the execution case. The ap­peal was eventually dismissed on 19-1-53. The decree-holder then took out fresh execution of the decree in Execution Case No. 5 of 1953, to which the present appeal relates. He prayed for delivery of possession stating that, in fact, possession had not been delivered to him of the property in question, and the judgment-debtor had continued to occupy certain houses with corrugated iron sheets, which were standing on the land. The decree-holder alleged that pre­viously some of the chalis which were on the land and had been constructed by the judgment-debtor, had been demolished, but still the judgment-deb­tor continued to be in occupation Of the other por­tion of the land, and, in spite of the Nazir's report that symbolical possession had teen given to him, he had not obtained actual possession of the pro­perty in question. The decree-holder submitted that in view of the appellate decree, he was en­titled to execute the same and to obtain an effec­tive order of delivery of possession on the footing of this decree. The judgment-debtor filed objections to the execution. His main contention was that a second execution case could not be started in view of the earlier report and order in the previous execu­tion case that delivery of possession had already been effected. The judgment-debtor filed objections to the execution. His main contention was that a second execution case could not be started in view of the earlier report and order in the previous execu­tion case that delivery of possession had already been effected. The learned Subordinate Judge re­jected the objections and directed delivery of pos­session to be given to the decree-holder, but, on appeal, the learned Additional District Judge has set aside that decision and held that the execu­tion case was not maintainable. (3) The point, therefore, which arises for con­sideration in this appeal is whether the fresh ex­ecution case filed on the basis of the appellate decree, to obtain delivery of possession of the pro­perty in question, was not maintainable in view of the order in the previous execution case. It is true that in the previous execution case, the Court had recorded an order saying that possession had been delivered and accordingly the case was dis­missed. The question is whether that order now prevents the appellant from executing the appel­late decree which affirmed the decree of the first Court. The Nazir's report in the previous execution case shows that the decree-holder had been given possession of the land after removing the thatch houses thereon and the assets of the judgment-debtor according to endorsements made. There is, however, no indication in the Nazir's report that the house with corrugated iron sheets also had been removed. It is true that the decree-hol­der gave a receipt showing that he had obtained delivery of possession, but the delivery of posses­sion obtained had to be considered in the con­text of those facts. It is clear, and it is not dis­puted by the respondent's learned counsel either, that there was no effective delivery of possession obtained by the decree-holder in the previous ex­ecution case of the entire property, as the decree provided. The whole argument has been address­ed to us for the judgment-debtor respondent on the footing that in view of the fact that the pre­vious execution case was dismissed on recording of a formal order that delivery of possession had been given, no fresh execution would lie. The learned counsel has placed great reliance, in support of his contention, upon a decision in Jagadish Nath Ray v. Nafar Chandra, AIR 1931 Cal 427 (A). The learned counsel has placed great reliance, in support of his contention, upon a decision in Jagadish Nath Ray v. Nafar Chandra, AIR 1931 Cal 427 (A). In that case, a decree-holder, hav­ing armed himself with a decree for khas posses­sion, executed the decree in the first instance by obtaining symbolical possession only, with some ulterior object of his own, and he subsequently, in another execution case, as a second instalment, asked for khas possession. In the circumstances, their Lordships held that such a course was not permissible under the law, and relegated him to a separate suit. At the same time, they recognis­ed that if the decree-holder had repudiated his getting only the symbolical possession, instead of the khas possession, he would have been perfect­ly within his rights to come before the executing Court a second time to have his remedy. The ease in question is distinguishable on its own facts. It appears that there, the decree-holder, with some ulterior purpose, was content with taking symbolical delivery of possession of the property in question, and was then trying afresh to take out execution of the decree. There is no such case here. The ease in question is distinguishable on its own facts. It appears that there, the decree-holder, with some ulterior purpose, was content with taking symbolical delivery of possession of the property in question, and was then trying afresh to take out execution of the decree. There is no such case here. It is also to be observed that there the learned Judges seemed to have followed the pra­ctice observed in that Court, though some of the other High Courts in India did not agree with that practice., Mukherji, J., who delivered the judgment, observed as follows: "So far as the decisions of the Calcutta High Court are concerned, they have, unlike the deci­sions of the Bombay High Court and the later decisions of the Madras High Court, uniformly laid down that where, as here, symbolical posses­sion has been erroneously delivered to a decree-holder as against the judgment-debtor, the decree providing for actual, and not symbolical, posses­sion, such delivery of possession is not a nullity but, being possession obtained through an officer of the Court and process of law, and the judgment-debtor being, in the contemplation of law, party thereto, it operates as actual possession as against the latter and his representatives, and that from this point of view, a suit for actual possession against the judgment-debtor must be instituted within 12 years from the date in which symbo­lical possession has been given." The learned Judge further held that if, in the cir­cumstances of that case, the conduct of the decree-holder had been construed as indicating a repudia­tion on his part of the symbolical possession which the peon had given him, or at least as disclosing a desire on his part not to be content at the time with the kind of possession that was delivered to him, but get the khas possession to which he was entitled under the decree, then he would be per­fectly within his rights to seek his remedy before the executing Court, and would not be driven to a separate suit for that purpose. The remedy, by way of execution, in that case was refused to the decree-holder because the learned Judges were not satisfied that the decree-holder's conduct entitled him to such a remedy. Even on that principle, there was no unanimity of opinion with some of the other High Courts in India, as observ­ed by the learned Judge himself. The remedy, by way of execution, in that case was refused to the decree-holder because the learned Judges were not satisfied that the decree-holder's conduct entitled him to such a remedy. Even on that principle, there was no unanimity of opinion with some of the other High Courts in India, as observ­ed by the learned Judge himself. We do not find, in the circumstances of this case, anything to show that the decree-holder should be debarred from the remedy by way of execution, and should be necessarily driven to a separate suit for the pur­pose of obtaining possession of the property to which, under the decree, he is entitled. It is also significant that in that case, it was not considered whether after obtaining the decree of the appellate Court, the decree-holder should not be entitled to levy execution of that decree in order to obtain actual possession of the property, if no such possession had been .obtained by him. We see no reason why the decree-holder should be deprived of this right when there was no other bar to the execution of the decree in his favour. The policy of the law is to avoid multiplicity of proceedings and not drive a successful decree-hol­der to a suit where relief should be given to him appropriately in execution of the decree. The learned Judge below, therefore, was not justified in dismissing the execution case simply relying upon the Calcutta decision which has been dis­cussed earlier. In fact, there is a decision of the same Court in "Abdul Hamid v. Prokash Chandra Nandi AIR 1934 Cal 793 (B), from which it appears that the decree-holder was held entitled to levy a fresh execution of the decree even though he had not obtained actual delivery of possession earlier. It was held in that case that "where, after delivery of possession made in execution of a final decree for partition a party cannot get actual possession of his share, the Court should order for fresh delivery of posses­sion." It appears that in that case, in execution of a final decree for partition, delivery of possession had been given, but it was found that the decree-hol­der actually did not get possession of his share, as some huts belonging to other co-sharers were standing thereon. The Court, therefore, ordered fresh execution and held that it was within the jurisdiction of the executing Court to order for a fresh delivery of possession by removing the huts in question. In our opinion, the principle of that decision should equally apply to this case. If the fact is, as it has been found in this case and not disputed by the respondent, that actual delivery of possession was not obtained by the decree-holder in the previous execution case, we see no justification for holding that the decree-holder should ibe deprived of his right to come before the executing Court and pray for a fresh delivery of possession, when there was no other bar to his right of executing the decree. Added to this was the factor that there was a fresh decree in his favour passed by the appellate Court, which was a good executable decree and met any technicality of the situation. (4) Mr. Lahkgr submits that tlie decree should be taken to have been satisfied in view of the order passed in the previous execution case dismissing the execution and giving delivery of possession. In my opinion, that formal order should not be read in that light, and if the fact remains that the decree-holder did not obtain possession, then there is no reason why the executing Court should not proceed to execute the decree afresh. It was suggested that if after delivery of possession, the judgment-debtor dispossessed the decree-holder, the right course for the decree-holder, if any, was to institute a suit for recovery of possession, and not to file a fresh execution case. Even if that were so, the answer to the argument is that if anything had been done by the judgment-debtor .to dispos­sess the decree-holder during the pendency of the appeal, the fact that the appeal was eventually decided in favour of the decree-holder, gave him a fresh right to levy execution on the basis of that decree, and if by any act or conduct, the judg­ment-debtor, during tihe interim period, sought to interfere with the possession of the decree-holder or to deprive him of that possession, he did BO at his peril, and the matter could be rectified in a fresh execution case on the basis of the appel­late Court's decree. Mr., Lahkar has also relied upon a decision of the Nagpur High Court in Lakshmi Narayan V. Shridhar AIR 1928 Nag 100 (C). That was a different case. There after actual possession had been obtained, there was dis­possession, and it was held that the appropriate remedy was by way of a suit. Besides, there the application was by the auction-purchaser, and it was pointed out that the application did not fall under S. 47(2) of the Code of Civil Procedure. The case, in our opinion, has no bearing upon the facts of the present case. Mr. Lahkar has also relied upon another decision of the Nagpur High Court in "Radhalal v. Chabilchand" (S) AIR 1955 Nag 79 ff». It is not necessary to discuss the facts in that case. It is true that symbolical possession may be as effective as actual delivery of possession because in the eye of law, there is no distinction between the two. Or. 21, R. 35, C. P. Code, talks of only one delivery of possession which is by dispossessing the judgment-debtor. As I have said, in the present case, the fact, that there was an appeal and a fresh decree stood in favour of the decree-holder, entitled the decree-holder to levy fresh execution of the decree, if actually he had not obtained de­livery of possession earlier. Mr. Lahkar has also tried to argue that in view of the fact that at one time Assam was within the jurisdiction of the Cal­cutta High Court, the Calcutta decision in AIR 1931 Cal 427 (A) should be followed as a matter of course. It is unnecessary for me to answer that con­tention at present because, as I have shown, that decision is distinguishable, and we prefer to ac­cept the other view of the Calcutta High Court which appears to be, in our opinion, more appro­priate on the point. (5) The appeal is accordingly allowed with costs. The decision of the Court below is set aside, and the case will now go back to the executing Court for disposal of the execution case according to law. (6). DEKA, J. I agree. D.H.Z. Appeal allowed.