Judgment :- 1. O. S. No. 198 of 1964 of the Munsiff's Court, Quilon, was a suit for specific performance of a contract of sale for the plaint property. This suit, instituted in 1964, was decreed on 28-3-1966 in favour of the plaintiff only in respect of the recovery of purchase money. The relief prayed in the plaint for specific performance of the contract of sale was not granted. Nor did the decree give a charge for the amount allowed to be recovered. 2. Prior to the decree by a document dated 26-2-1965 the judgment-debtor is alleged to have transferred the plaint property by a deed of sale (Ext. P1) to the 1st respondent in this Civil Revision Petition who. according to the petitioner-decree-holder, is the uncle of the judgment-debtor. 3. After the decree, the plaint property was attached and sold in court auction. The decree-holder purchased the property. It also appears that he obtained deliveiy of the property. The 1st respondent, the purchaser of the property from the judgment-debtor filed a petition under Order XXI, R.90 C. P. C. to set aside the sale. However, this petition was dismissed on the ground that since the alleged purchase was before the date of attachment of the property, the interest of the petitioner therein would not be affected by the sale. 4. The 1st respondent, after delivery of the property, filed the petition, E. A. No. 264 of 1973 before the executing court under Order XXI, R.100 for re-delivery of the property. Therein he claimed that he had purchased the property from the judgment-debtor long before the attachment, that he had mortgaged the property to a stranger on 21-12-1966 as per Ext. P2 document, only the trees therein were in the possession of the mortgagee but he himself continued in possession and in the circumstances he was entitled to get back possession. The decree-holder objected to this application contending that Ext. P1 is sham and nominal, it was effected with intent to defeat and delay the creditor and it is void under S.53 of the Transfer of Property Act. The decree-holder objected to this application contending that Ext. P1 is sham and nominal, it was effected with intent to defeat and delay the creditor and it is void under S.53 of the Transfer of Property Act. Though in the objections the decree-holder had taken up the position that the mortgage of the trees alleged by 1st respondent in his application is not true and the mortgagee, never got any possession under the document, it appears to have been seriously argued before the court below that as the mortgage deed would indicate that possession of the whole property had been given to the mortgagee, the 1st respondent-mortgagor cannot maintain a petition under order XXI, R.100 CPC. It had also been contended that the application is barred by the principles of res judicata in view of the dismissal of the earlier petition under XXI, R.90. 5. The court below negativing the contentions of the decree-holder ordered re-delivery of the property to the 1st respondent. Aggrieved by that decision, the decree-holder has come up with this revision petition to this Court. 6. At the outset of the hearing itself I pointed out to Sri. P. Krishna Moorthy, learned counsel for the petitioner, that as the ordinary remedy of the party aggrieved by such an order is to file a suit under Order XXI, R.103 and in the nature of the limited jurisdiction of the High Court under S.115 CPC., it will not be useful or proper for the court to deal with all the questions the petitioner-decree holder bad raised in the court below. This Court could only interfere in the matter if an error of jurisdiction resulting in manifest injustice to the petitioner is established. And very correctly in his arguments Mr. Krishna Moorthy only high-lighted that aspect of the case, which according to him make the application filed by the 1st respondent not maintainable at all. Mr. Krishna Moorthy very strongly contended that as the court below has rightly held that actual possession of the property had passed from the 1st respondent to his mortgagee before the sale of the property and its delivery, 1st respondent has no right to file an application under Order XXI, R.100 CPC. Order XXI, R.100 and 101 are as follows: "100. Krishna Moorthy very strongly contended that as the court below has rightly held that actual possession of the property had passed from the 1st respondent to his mortgagee before the sale of the property and its delivery, 1st respondent has no right to file an application under Order XXI, R.100 CPC. Order XXI, R.100 and 101 are as follows: "100. Dispossession by decree-holder or purchaser.-(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same. 101. Bona fide claimant to be restored to possession-Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property and may order the decree-holder or auction-purchaser as the case may be, the pay in addition to costs reasonable compensation to the applicant for dispossession." According to the learned counsel for the petitioner, possession of the property referred to in R.101 can only be khas or actual physical possession of the property and not mere constructive or juridical possession. 7. I will certainly go into this aspect of the case because on the correct interpretation of the word 'possession' the lower court's jurisdiction to direct re-delivery arises in the case. As regards the other questions in the case the more proper forum would be the court before which a suit under Order XXI, R.103 may be instituted and 1 am not going into those questions. As regards those questions it can be very definitely stated that the court below has not committed any jurisdictional error warranting interference by this Court under S.115 CPC. 8. Therefore the question for consideration by this Court is whether Order XXI, R.100 CPC is applicable only in the case of actual dispossession-physical dispossession in fact and not in cases of juridical or constructive dispossession. The main case relied on by the petitioner's counsel was Pera Naidu v. Soundaravalli Ammal (AIR. 8. Therefore the question for consideration by this Court is whether Order XXI, R.100 CPC is applicable only in the case of actual dispossession-physical dispossession in fact and not in cases of juridical or constructive dispossession. The main case relied on by the petitioner's counsel was Pera Naidu v. Soundaravalli Ammal (AIR. 1954 Madras 516). In a sale held by a central co-operative society one Ramaswami Naicker purchased certain property. An ex parte decree for recovery of this property from Naicker was passed in favour of one lady by name Soundaravalli Ammal who in execution of the decree obtained possession of the property Brother of Ramaswami Naicker, one Pera Naicker and others then filed an application under Order XXI, R.100 on the ground that they were brothers of Naicker, the judgment-debtor, the lands concerned were really joint family property to which all of them were jointly entitled and the petitioners' share was 2/3rd, Ramaswami Naicker was not the manager of the family and consequently the decree obtained against him and the execution proceedings in consequence thereof was not binding on them. Venkatarama Aiyar J, who decided the case pointed out that there is no allegation in the petition that the petitioners were in actual possession thereof along with their brother or were in enjoyment of profits realised therefrom. Nor did it appear from the petition that the applicants were in receipt of any income as members of joint family. The prayer in the petition was that the delivery could not affect "the rights of the petitioners to possession of the schedule properties". The learned judge, then referring to the contention that the possession contemplated by Order XXI, R.100 is not limited to exclusive possession but it would include joint possession also and to the case law on the matter, states that the authorities clearly establish that a person in joint possession is competent to maintain an application under Order XXI, R.100; but nevertheless it is necessary that the person must have been actually in possession before be could apply under this rule There was no averment in the case that the petitioners were themselves cultivating the lands or had leased the lands and were in receipt of rents. The learned judge subsequently deals with the contention, based on the decisions wherein landlords who had put lessees in possession of the properties were held entitled to file an application under Order XXI, R.100 and on the same principle when one co-owner had been dispossessed it is competent for another co-owner to maintain an application under Order XXI, R.100 even though he was not in actual possession. I would quote the judge: "This argument, though plausible, is untenable having regard to the true scope of 0.21 R.100 and 101. The object of these rules is to sustain the possession of persons who were not parties to the suit and who are in possession on their own account or on behalf of others who are not judgment-debtors. The scope of the enquiry under these rules is limited to finding whether the applicant was in possession at the time of delivery. If that is found, he has to be restored back to possession. That clearly indicates that what the court is concerned with is actual possession. Any question of juridical possession would be foreign to the nature and purpose of the enquiry. It was observed in -'AIR 1914 Cal. 186 (B)', that the effect of an order under 0.21 R.101 was to restore the 'status quo' before delivery was effected so far as the applicant was concerned. That will have a practical value only if the applicant was in actual possession of the property or was in receipt of income therefrom. If he had neither, the restoration will mean nothing to him. If his position after delivery remained precisely what it was before, an order under R.101 cannot yield him any benefit. It is on this principle that the authorities have held that where a decree-holder obtains merely symbolical possession an application under 0.21 R.100 is not maintainable. Vide-'Ibrahim Mullick v. Ramjadu Rakshit. 30 Cal- 710(H),- 'Goshtha Behari v. Indrachandra'. AIR 1933 Cal. 144 (2) (I) and-'Ma Aye Tin v. E A Rice and Trading Co', AIR. 1941 Rang 298 (J). In these cases the delivery which was symbolical had not interfered with the actual possession of the applicants and there was no dispossession. In the present case, which is their converse, the delivery which is actual has not interfered with the juridical possession of the applicants and therefore, there is no dispossession. 1941 Rang 298 (J). In these cases the delivery which was symbolical had not interfered with the actual possession of the applicants and there was no dispossession. In the present case, which is their converse, the delivery which is actual has not interfered with the juridical possession of the applicants and therefore, there is no dispossession. The decisions in which landlord was held entitled to file an application under 0.21 R.100 when the person actually dispossessed was the tenant do not form an exception to this rule. There the receipt of the rent by the landlord is tantamount to actual possession by him The position might be thus stated. When lands are leased, both the landlord and the tenant together share the produce in such proportion as they agree; both of them are thus equally in possession and both of them are entitled to take action under 0.21 R.100. But when a co-sharer in possession appropriates the whole income for himself it cannot be said that the other co-sharers are in actual possession of the lands. It is true that for certain purposes the possession of one co-sharer may be regarded as the possession of the other co-sharers. But that, however, is juridical possession and 0.21 R.100 is concerned with actual possession. My conclusion is that where there are no allegations of actual possession by the applicants and of disturbance thereof, 0.21 R.100 has no application. This of course does not prevent the applicants from establishing their rights in an action. The bar is only with reference to the special procedure prescribed in 0.21 R.100." 9. It might be noted from the above that the learned judge equates constructive possession of a landlord in regard to the property leased out to a tenant to actual possession because the receipt of rent by the land-lord is tantamount to that. If that be so, why not the constructive possession of a mortgagor in respect of property mortgaged with possession be also considered tantamount to actual possession because the income of the property received is being adjusted to the interest or interest and part of the principal amount received by the mortgagor. It is clear that the learned judge does not mean by actual possession the physical possession exercised. If the mortgagor's possession is disturbed the status quo before delivery is disturbed. It is clear that the learned judge does not mean by actual possession the physical possession exercised. If the mortgagor's possession is disturbed the status quo before delivery is disturbed. The adjustment towards the interest or the principal of the mortgage money is affected. It cannot be said in such a case that the restoration of the property will mean nothing to the mortgagor. His position after delivery does not remain precisely as it was before. I think Venkatarama Aiyar J. views differently the constructive possession of a landlord or a mortgagor with the juridical possession of a co-sharer who is not given his share of the profits of the property by the co-sharer in physical control of the property. 10. In the other decision relied by the petitioner-Kesavan v. Neelkantan (AIR. 1955 T.C. 225) (F.B.)-the real question which arose for determination was whether an application under Order XXI, R.100 CPC. could be made by a stranger to the decree before possession had been obtained by the decree-holder. The question now being considered in this case was not necessary for decision in that case. However the Full Bench made the following observation: "Possession within the meaning of the rules has been held in (1903) ILR. 30 Cal 710, by Maclean, C. J. to be khas possession. Symbolical possession is outside the ambit of the rules. It is clear therefore, that the dispossession contemplated by R.100 after which alone a stranger can approach the court for relief is actual dispossession". 11. The facts and decision in Ibrahim Mallik v. Ramjadu Rakshit (ILR. 30 Cal. 710) can be examined. The facts are: "Ramjadu Rakshit and others obtained a decree for arrears of rent against their tenants, Lachmi and Golap. In execution of that decree they brought the defaulting tenure to sale and purchased it themselves on the 12th February 1902. The sale was confirmed on the 18th March 1902, and formal possession was delivered to the purchasers on the 16th November 1902. One Ibrahim Mullick and another made an application on the 5th December 1902 in the Court of the 3rd Munsiff of Serampore under S.335 of the Civil Procedure Code on the allegation that, by the delivery of possession, formal possession of a tank belonging to them was given to the purchasers. One Ibrahim Mullick and another made an application on the 5th December 1902 in the Court of the 3rd Munsiff of Serampore under S.335 of the Civil Procedure Code on the allegation that, by the delivery of possession, formal possession of a tank belonging to them was given to the purchasers. They stated in their application that the object of it was to protect themselves against any disturbance in their possession of the said tank, and prayed for an inquiry by the Court as to the alleged dispossession The decree-holders objected that the application was not tenable under S.335 of the Civil Procedure Code, as it appeared from the petition itself that the applicants were still in possession of the tank; and, moreover, the applicant in his deposition stated that he was still holding possession of the disputed tank. The learned Munsiff overruled the objection of the decree-holders and allowed the application". (I might state here that the case arose under the Civil Procedure Code (Act XIV of 1882) and S.335 corresponds to present 0.21, R.10.) Maclean C. J. with whom Geidt J. concurred said: "The only question we have to consider on this application is whether the applicant in the Court below has brought his case within S.335 of the Code of Civil Procedure, so as to give the Court jurisdiction to act under that section: we have nothing to do with any other question. That section allows a summary proceeding in certain cases. It says:-"If in delivering possession "of the property purchased "any such person," that is, a third person, "is dispossessed, the Court, on the complaint of the purchaser or the person so dispossessed, shall enquire into the matter of dispossession " The question we have to consider is whether the applicant in the Court below was dispossessed within the meaning of the section. I think that, upon his own showing, whatever may be the ulterior rights of the parties, he has not been so dispossessed as to entitle him to apply in the summary way authorised by the section. On his own evidence he is still in possession: he has not been dispossessed. It is said that he has been dispossessed because symbolical possession has been given of the tank in question to the petitioner. On his own evidence he is still in possession: he has not been dispossessed. It is said that he has been dispossessed because symbolical possession has been given of the tank in question to the petitioner. Whatever, as between the parties, ultimately may be the legal effect of this, it does not amount to the dispossession contemplated by S.335. S.318 throws at least a side light upon what is meant by "dispossession" in S.335." (section 318 corresponds to Order XXI, R.96). 12. I do not think this case would be of much help for resolving the controversy here. In that case the party had not been dispossessed at all on his showing. He was in possession and he came to the Court because of apprehension regarding the legal effect of a symbolical possession of the tank in dispute being given to the decree-holder auction purchaser. There was therefore no question of dispossession at all. 13. A case in point is Mancharam v. Fakirchand (1901) ILR 25 Bom. 478. The question before the court was whether the word 'possession' in S.328 and 331 of the Civil Procedure Code of 1882 (corresponding to Order XXI, R.97 and 99) ought to be confined to actual physical possession as contra distinguished from constructive or symbolical possession. What happened in that case was when a decree-holder who had obtained a decree for possession of a shop against his tenants sought to get possession, he was obstructed by his own brother who claimed that the shop was the joint property of the brothers, that they along with their mother jointly took the rent of the property and he cannot be dispossessed by his brother decree holder The Subordinate Court having held in favour of the obstructor, the matter was taken up to the High Court, the decree holder contending that as the opponent having admitted the shop in dispute is in the actual possession of the judgment-debtors, and not in his own possession, S.331 did not apply. The High Court held, Candy and Tyabji JJ., Whitworth J. dissenting, that the word as used in the section is not limited to actual physical possession. It includes also constructive possession, such as possession by a tenant. 14. The same view was taken in Brajabala Devi's, case-(1906) ILR 33 Cal. 487. The High Court held, Candy and Tyabji JJ., Whitworth J. dissenting, that the word as used in the section is not limited to actual physical possession. It includes also constructive possession, such as possession by a tenant. 14. The same view was taken in Brajabala Devi's, case-(1906) ILR 33 Cal. 487. A Division Bench of the Calcutta High Court held: "Now the terms 'possession' and 'Dispossession' are used not only in S.335 but also in S.331 and 332 of the Civil P. C. and the scope and object of these sections indicate that these terms are used in the same sense throughout. If then we turn for a moment to S.318 and 319 of the Civil P. C. we find that the former deals with delivery of actual physical possession and the latter treats of the delivery of constructive possession, both referring to delivery of property sold in execution of a decree. Provisions precisely analogous are to be found embodied in S.263 and 264 of the Civil P. C. both of which refer to the delivery of immovable property covered by a decree. Prima facie, therefore, it is difficult to see why the term 'possession' in S.335 of the Civil P C should be narrowly construed and why it should be limited only to the case of actual physical possession. We must hold accordingly that the term 'possession' is not used in a restricted sense as relating to a mere tangible or physical possession but includes constructive possession or possession in law, by receipt of rent or otherwise." (Sections 263, 264, 318, 319, 331, 332 and 335 corresponds to Order XXI, R.35, 36, 95, 96, 99,100 and 101 of Code of Civil Procedure, 1908.) 15. One of the cases refer red to by the Calcutta High Court in the above case is Asgur Ali v. Asgur Ali (1873) 20 W. R.373 where it was ruled that possession through a mortgagee was sufficient to sustain a claim under the section. 16. The meaning of the word "dispossession" has been considered by a learned judge of the Allahabad High Court in Shamsuddin v. Abbas Ali (AIR. 1971 Allahabad 117) with reference to decided cases and it was held therein; "Though the Law has made a distinction between actual possession and symbolical possession under R.35 and 36 of 0.21, no such distinction has been made under R.100 of 0.21. 1971 Allahabad 117) with reference to decided cases and it was held therein; "Though the Law has made a distinction between actual possession and symbolical possession under R.35 and 36 of 0.21, no such distinction has been made under R.100 of 0.21. Hence, where A's symbolical possession it superimposed on the earlier symbolical possession given to B, under 0.21. R.36, it would amount to dispossession of B within meaning of 0.21, R.100. It would be especially so where the possession delivered to A is an actual possession under 0.21, R.35." 17. I see much sense and logic in the reasoning in the decisions in (1901) ILR. 25 Bom. 478 and (1906) ILR. 33 Cal. 487. As Salmond points out in his Jurisprudence (See Page 391 of the 9th Edn. edited by J. L. Parker), one person may possess a thing for and on account of someone else. In such a case the latter is in possession by the agency of him who so holds the thing on his behalf. The possession thus held by one man through another may be termed mediate, while that in which is retained directly or personally may be distinguished as immediate or direct. According to the learned author Salmond there is one form of mediate possession, respecting which doubt may exist, but which must be recognized by sound theory as true possession. He proceeds to state; "It is the case in which the immediate possession is in a person who claims it for himself until some time has elapsed or some condition has been fulfilled, but who acknowledges the title of another for whom he holds the thing, and to whom he is prepared to deliver it when his own temporary claim has come to an end: as, for example, when I lend a chattel to another for a fixed time, or deliver it as a pledge to be returned on the payment of a debt. Even in such a case I retain possession of the thing, so far as third persons are concerned. Even in such a case I retain possession of the thing, so far as third persons are concerned. The animus and the corpus are both present; the animus, for I have not ceased, subject to the temporary right of another person, to claim the exclusive use of the thing for myself; the corpus, inasmuch as through the instrumentality of the bailee or pledgee, who is keeping the thing safe for me, I am effectually excluding all other persons from it, and have thereby attained a sufficient security for its enjoyment. In respect of the effective realisation of the animus domini, there seems to be no essential difference between entrusting a thing to an agent, entrusting it to a bailee at will, and entrusting it to a bailee for a fixed term, or to a creditor by way of pledge. In all these cases I get the benefit of the immediate possession of another person, who, subject to his own claim, if any, holds and guards the thing on my account." If the mortgagee has to guard the property given as security for him not only for safeguarding his security but also on account of the owner the mortgagor, it is only proper and equitable that the mortgagor is also allowed to intervene in a matter of safeguarding his own property. In the light of the above discussion, I am of the view that a person in constructive possession of a property as a mortgagor is competent to maintain as application under Order XXI, R.100. In that view the Civil Revision Petition has only to be dismissed. I do so, but in the circumstances of the case without costs. Dismissed.