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2001 DIGILAW 555 (KAR)

M. SHIVAPPA v. K. S. SYED MOHIDEEN

2001-07-18

S.N.KUMAR

body2001
S. N. KUMAR, J. ( 1 ) THE respondent/decree-holder was granted 4 acres 15 guntas of land in Sy. No. 33 of Channasandra Village, by the Government and he was entitled to the fruits in the trees in the said land as well as the right to remove the dried and fallen branches of the trees. When the said right of his was sought to be interfered with by the petitioner he filed Original suit No. 542 of 1975 for a decree of permanent injunction restraining him from interfering with his enjoyment of the said rights in the suit schedule property. The defendant set up a defence that out of the total extent of 4 acres 15 guntas he is in possession of, 1 acre 20 guntas of the said survey number and the plaintiff has not right to the said portion. Thereafter the plaintiff sought for amendment of the plaint seeking relief of possession of 1 acre 20 guntas which the defendant claim to be in possession. After contest the said suit came to be decreed and a decree for possession was granted. Aggrieved by the said judgment and decree the defendant preferred an appeal R. A. No. 69 of 1981 which also came to be dismissed on merits. The second appeal R. S. A. No. 848 of 1991 preferred in this Court also came to be dismissed. ( 2 ) IT is thereafter decree-holder sought to execute the decree for possession in Execution No. 66 of 1992. The judgment-debtor entered appearance and objected the execution of the decree. After over-ruling the objections the Court ordered issue of delivery warrant. The decree-holder was put in possession of the said area measuring 1 acre 26 guntas in pursuance of the decree and the bailiff submitted a report to the court stating that possession has been delivered. The decree-holder accepted the said delivery of possession and requested the Court to enter full satisfaction. It is at that stage the judgment-debtor filed an application under Section 47 of the Civil Procedure Code requesting the Court to hold an enquiry as regards the execution and satisfaction of the decree in the above case and hold that the decree-holder has not been put in possession and the decree is not satisfied. It is at that stage the judgment-debtor filed an application under Section 47 of the Civil Procedure Code requesting the Court to hold an enquiry as regards the execution and satisfaction of the decree in the above case and hold that the decree-holder has not been put in possession and the decree is not satisfied. In the affidavit filed in support of the said application he has categorically stated that on 20-6-1995 the decree-holder appears to have taken delivery of possession of the execution petition schedule property through Court from the judgment-debtor but the judgment-debtor emphatically denies the said fact. Subsequently, delivery receipt and other proceedings drawn by the court bailiff are concocted and got up for the purpose of this case. There was no actual delivery. Hence the entire delivery proceedings is liable to be treated as illegal. To deliver 1 acre 26 guntas of land no survey or demarcation was done nor any such sketch was shown to the plaintiff. Therefore, he wants an enquiry to be held regarding due execution of the decree. ( 3 ) THE decree-holder filed his statement of objections contending that the delivery warrant issued by the Court has been duly executed by the bailiff Veerappa and he has given report that he has given possession to the decree-holder on 20-6-1995. The decree-holder has also given receipt acknowledging the fact that actual physical possession of the schedule property has been delivered to him in the presence of the witnesses in whose presence the mahazar has also been drawn at the spot. He has denied all other allegations made by the judgment-debtor and sought for dismissal of the application filed by the judgment-debtor. The Court below recorded evidence on the application and after considering oral and documentary evidence on record came to the conclusion that the judgment-debtor has no right to raise objections about delivery of possession and procedure contemplated for delivery of possession has been followed and therefore there is valid delivery of possession of the suit property as per the decree. Therefore, the objections raised by the judgment-debtor were rejected and accepting the report of the bailiff and the fact that possession has been delivered the execution petition was closed. It is against this order the judgment-debtor has preferred the present revision. Therefore, the objections raised by the judgment-debtor were rejected and accepting the report of the bailiff and the fact that possession has been delivered the execution petition was closed. It is against this order the judgment-debtor has preferred the present revision. ( 4 ) SRI R. U. Goulay, learned Senior Counsel contended that the Court below committed serious error in not considering the documentary evidence produced by the judgment-debtor on record and his oral evidence in support of his application and therefore the impugned order is liable to be set aside. Secondly, he contended adjoining the property in dispute he owns land bearing Sy. Nos. 43, 44 and 45 and under the guise of executing the decree, the decree-holder is attempting to take possession of the aforesaid properties and therefore unless the boundaries of the schedule property is clearly demarcated and fixed, delivery of the disputed property cannot be given to the decree-holder and in that view of the matter the report submitted by the bailiff is a concocted document and delivery said to have been given is only a paper delivery and factually the judgment-debtor is continuing in possession of the property in dispute. Therefore, he contends, unless the boundary is fixed and a proper enquiry is conducted to show that possession is delivered the say of the decree-holder that he has taken delivery could not be accepted and execution petition ought not to have been closed. ( 5 ) SRI C. N. Ramaswamy Shastry, learned Senior Counsel appearing for the decree-holder submits in pursuance of the delivery warrant issued the bailiff went to the spot and in the presence of the judgment-debtor's representative possession has been delivered to the decree-holder and the said delivery of possession is in accordance with law and when the decree-holder has accepted the said delivery of possession, the judgment-debtor has no right to object to the same and he has no right to request the Court not to close the execution petition. ( 6 ) IN view of the aforesaid contentions the point that arise for my consideration is: when the decree-holder accepts delivery of possession and request the Court to close the execution petition is it open to the judgment-debtor to contend that possession has not been delivered and execution petition should not be closed? ( 6 ) IN view of the aforesaid contentions the point that arise for my consideration is: when the decree-holder accepts delivery of possession and request the Court to close the execution petition is it open to the judgment-debtor to contend that possession has not been delivered and execution petition should not be closed? ( 7 ) IN the case of Tavanappa Hambanna Sangani v Veerabhadrappa tippanna, considering a similar question this Court has held as under:"at the stage of delivery the judgment-debtor has no interest in the property to protect and he is not entitled to raise any objections to the delivery effected through the process of the Court which is accepted by the decree-holder, except where objection is raised that there is excess delivery or that the property not covered by decree is delivered. The effect of recording delivery is that the decree is satisfied and the decree-holder is precluded from seeking a second execution on the ground that he has not obtained delivery in accordance with the terms of the decree. By the decree-holder accepting delivery without removing the person in actual occupation the judgment-debtor suffers no detriment to his interest, the decree-holder takes the risk viz. , that he cannot seek fresh execution on the ground that he has not obtained actual delivery". In fact, the Supreme Court in the case of Shew Bux Mohata and Another v Bengal Breweries Limited and Others, dealing with the similar situation has held as under:"under Order 21, Rule 35 the person in possession and bound by the decree has to be removed only if necessary that is to say, if necessary to give the decree holder possession he is entitled to and asks for. But it is open to the decree-holder to accept delivery of possession under that rule without actual removal of the person in possession. If he does that, then he cannot later say that he has not been given that possession to which he was entitled under law. But it is open to the decree-holder to accept delivery of possession under that rule without actual removal of the person in possession. If he does that, then he cannot later say that he has not been given that possession to which he was entitled under law. Where the decree-holders of their own accepted delivery of possession with defendant remaining on the premises with their permission and they granted a receipt acknowledging full delivery of possession and permitted the execution case to be dismissed on the basis that full possession had been delivered to them by the defendant, they are bound to the position that the decree has been fully executed and the decree cannot be executed any more". ( 8 ) IN view of the aforesaid legal position it is clear the judgment-debtor has no right to object to the Court accepting the report of the bailiff or the submission of the decree-holder that possession has been delivered to him in pursuance of the decree. Judgment-debtor has no interest to protect at that stage. It is not open to him to contend that the delivery accepted by the decree-holder is a paper delivery. In fact there was no necessity for the Court to hold an enquiry regarding delivery of possession, when the decree-holder acknowledges delivery of possession. ( 9 ) THEREFORE, I do not find any substance in the contention of the petitioner that when the application is filed under Section 47 complaining that the delivery given to the decree-holder is only a paper delivery and Court ought to hold an enquiry to find out whether delivery given is paper delivery or actual delivery. ( 10 ) INSOFAR as the other contention of the petitioner is concerned that under the guise of executing the decree there is likelihood that the decree-holder may take possession of the lands bearing Sy. Nos. 43, 44 and 45 which are adjoining the property in dispute and it belongs to the judgment-debtor is concerned, the said apprehension is wholly misconceived. If it is his case that possession is a paper delivery then he cannot have any grievance that as he has not lost possession of not only the disputed property but also the Sy. Nos. 43, 44 and 45. If it is his case that possession is a paper delivery then he cannot have any grievance that as he has not lost possession of not only the disputed property but also the Sy. Nos. 43, 44 and 45. But if he is actually dispossessed from his land which is not subject-matter of the decree, then it is always open to him to complain to the executing Court that this is a case of excessive execution, property which is not covered under the decree has been delivered to the decree-holder and that he is entitled to redelivery of those properties. That right of the judgment- debtor is fully recognised. In the instant case when the judgment-debtor says that he has not delivered possession he cannot have any grievance whatsoever, to the Court accepting the report of the bailiff or the sub-mission of the decree-holder that he has taken possession of the suit schedule property. Therefore, I do not find any merit in the CRP. Accordingly, it is dismissed. --- *** --- .