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Karnataka High Court · body

2009 DIGILAW 203 (KAR)

G. H. Gurumurthy v. Kale Gowda S/o. Kale Gowda

2009-03-13

B.V.NAGARATHNA

body2009
Judgment :- This revision petition is filed by the petitioner/judgment debtor challenging the order dated 30.1.2009 passed in Misc.15/07 by the Principal Civil Judge (Junior Divn.), Arasikere. The said order was made on the application filed under Order VII Order 11, Code of Civil Procedure, (for short, “the Code”) by the petitioner herein and the same came to be rejected. Being aggrieved by the said order of rejection, this revision petition has been filed. 2. The relevant facts of the case are that O.S.No.439/77 was filed for recovery of a certain sum by the respondent against the petitioner herein. The said suit was decreed by judgment and decree dated 18.12.1980. Subsequently, Execution Petition No.238/81 was filed by the respondent for execution of the said decree. In the said proceeding, by order dated 24.10.1981, the suit schedule property was attached and on 23.9.1988 there was a public auction of the said property and by another order dated 31.8.1989, the sale was confirmed. 3. It would be of relevance to mention that the respondent herein who was decree holder purchased the property in the auction. Thereafter, M.A. 25/89 was filed by the petitioner challenging the confirmation of sale which was dismissed by order dated 11.4.1990. 4. Later, an application was filed under Order XXI Rule 96 of the Code by the respondent in Misc. 20/91 on 10.4.1991. On the said application, symbolical possession of the suit property which was purchased in the auction, was ordered on 2.6.2001 in favour of the respondent herein. The said order was challenged in M.A.16/01 which was dismissed on 13.4.2004. Thereafter, M.A.15/07 was filed by the respondent herein under Order XXI Rule 95 of the Code seeking actual possession of the suit schedule property. The said application was filed on 13.12.2007 and by order dated 19.7.2008, there was an order for issuance of delivery warrant. Since the said order was an exparte order, at the instance of the petitioner herein, on 8.8.2008 it was recalled. 5. Subsequently, I.A. No. VII was filed by the petitioner herein in M.A.15/07 by invoking Order VII Rule 11 of the Code seeking dismissal of the proceedings on the ground that it was barred by limitation. After objections were filed and on hearing both sides, by order dated 30.1.2009, the application filed under Order VII Rule 11 of the Code has been rejected. After objections were filed and on hearing both sides, by order dated 30.1.2009, the application filed under Order VII Rule 11 of the Code has been rejected. Consequently, the application filed under Order XXI Rule 95 of the Code (wrongly stated as Rule 96 in the judgment) has been allowed with a direction that delivery warrant is returnable by 2.3.2009. Being aggrieved by the said order, the judgment debtor has preferred this revision petition. 6. At this stage, it would be of relevance to state that O.S.No.74/75 for declaration and partition was filed by one Shashikumar, son of the petitioner herein through his mother-Shivamma which was decreed by judgment and decree dated 31.7.1981 in which 1/6th share was allotted to said Shashikumar. Thereafter, R.A.15/87 was filed which was, however, dismissed on 31.1.1989. Subsequently, O.S.NO.161/91 was filed by the mother and sisters of the petitioner herein for partition and the said suit was decreed on 5.4.1994 against which R.A.13/94 was filed by the petitioner through his wife and son and the same came to be dismissed on 21.10.1995. In order to execute the said decree, E.P.No.103/02 was filed in which there has been allotment of shares made to the parties in the suit by virtue of mahazar drawn on 27.1.2003. Coincidentally, the suit property which was purchased by the respondent in the auction in E.P.No.238/81 out of which this revision arises, was the subject matter of O.S.No.161/91, and on 27.1.2003 in respect of Survey No.108/1, there has been allotment made granting 19 guntas to the petitioner’s mother, 19 guntas, 21 guntas and 22 guntas to the three sisters of the petitioner respectively and 1 gunta to the petitioner. The said property has been numbered as No.108/4. 7. When the matter stood thus, M.A.15/07 was filed under Order XXI Rule 95 of the Code by the respondent seeking actual possession of the property which was the subject matter of auction. It is in this context that the petitioner contended that the filing of the same was barred by limitation and being aggrieved by the order of rejection of his application, he is before this court. 8. I have heard Sri M.R. Rajagopal, learned counsel for the petitioner and Sri B.S. Jeevan Kumar for Sri S. Nagbhushan, learned counsel for the respondent. 9. 8. I have heard Sri M.R. Rajagopal, learned counsel for the petitioner and Sri B.S. Jeevan Kumar for Sri S. Nagbhushan, learned counsel for the respondent. 9. It is submitted on behalf of the petitioner that originally the application filed under Order XXI Rule 96 of the Code was allowed by granting symbolical delivery of possession and subsequently the present application seeking physical possession/actual possession of the property is filed. Under Article 134 of the Limitation Act, the prescribed period of limitation for seeking delivery of possession by a purchaser of immovable property after the sale in execution of a decree is one year when the sale becomes absolute. In instant case, it was time barred and therefore, the application filed by the petitioner under Order VII Rule 11 of the Code ought to have been allowed. Further, since there was an application already filed and orders were passed thereon, the second application was not maintainable. Under the circumstances, the executing court ought to have rejected Misc. 15/07 by allowing his application under Order VII Rule 11 of the Code. 10. In support of his contentions, learned counsel for the petitioner has relied on the following decisions: I) Dev Raj Dogra & Others .V. Gyan Chand Jain & Others ( AIR 1981 SC 981 ); II) Balakrishnan .V. Malaiyandikonar ([2006] 3 SCC 49); AND III) M.V.S. Manikayala Rao .V. M. Arasimhaswam & Others ( AIR 1966 SC 470 ) 11. Per contra, it is submitted on behalf of the respondent that the first application filed Under Order XXI Rule 96 of the Code was in time and it was allowed by granting symbolical possession. On account of certain developments explained in Exn. Petition No.103/02 filed pursuant to the judgment and decree passed in O.S.NO.161/91, the second application under Order XXI Rule 95 of the Code was filed in Misc. 15/07. Hence, it cannot be held to be barred by the law of limitation and two applications are also maintainable, and the executing court was justified in dismissing the application filed by the petitioner under Order VII Rule 11 of the Code. 12. 15/07. Hence, it cannot be held to be barred by the law of limitation and two applications are also maintainable, and the executing court was justified in dismissing the application filed by the petitioner under Order VII Rule 11 of the Code. 12. In support of the above contentions, learned counsel has relied on the following decisions: i) Kakuramji .V. Mantripragada Bapiraju (AIR 1957 ANDHRA PRADESH 75); ii) Vydialinga Swamigal .V. Karuppanna Goundan & Others (AIR (29) 1942 MADRAS 718); AND iii) Balwant Narayan Bhagde .V. M.D. Bhagwat & Others ( AIR 1975 SC 1767 ). 13. In reply, learned counsel for the petitioner submits that the judgments relied upon by the respondent’s counsel are not applicable to the present case; that there is no continuation of proceedings and the executing court was not right in dismissing the application filed under Order VII Rule 11 of the Code without assigning any reasons ordering issuance of delivery warrant. 14. Having regard to the rival contentions on both sides, the only point that arises for my consideration is : (1) Whether the application filed under Order XXI Rule 95 of the Code on 13.12.2007 was barred by limitation and hit by Article 134, Limitation Act? (2) Whether the respondent could maintain an application under Order XXI Rule 95 of the Code after disposal of earlier application filed under Order XXI Rule 96 of the Code? (3) What order? 15. Since point nos.(1) and (2) are inter-related, they are taken up together. From the material on record, it is not in dispute that pursuant to the judgment passed in O.S.No.No.439/77, the respondent initiated E.P.No.238/81 in which there was attachment of the suit property bearing Survey No.108/01 comprising 1.39 acres in Javgal Village, Arasikere, Hassan. The said property was put up for sale on 23.9.1988 and the decree holder himself purchased it and there was confirmation of sale by order dated 21.8.1989. After the challenge made to the said sale was rejected, Misc. No.20/91 was filed by the decree holder invoking Order XXI Rule 96 of the Code and by order dated 2.6.2001, symbolical delivery of possession was granted to the respondent/decree holder which was also challenged but it was rejected in M.A. No,16/01 by order dated 13.4.2004. 16. After the challenge made to the said sale was rejected, Misc. No.20/91 was filed by the decree holder invoking Order XXI Rule 96 of the Code and by order dated 2.6.2001, symbolical delivery of possession was granted to the respondent/decree holder which was also challenged but it was rejected in M.A. No,16/01 by order dated 13.4.2004. 16. During the course of arguments, learned counsel for the respondent has brought to my notice the fact that in the intervening period, the decree in the suit for partition is O.S.No.161/91 was got executed by the mother and sisters of the petitioner and on 27.10.2003 by virtue of the mahazar drawn, the respective shares in the property of the said suit which is also the subject matter of auction was bifurcated between the parties to the suit and ultimately only 1 gunta was allotted in survey No.108/1 to the petitioner herein. Thus, what becomes apparent is that the in respect of the property which was purchased in public auction in execution of the decree in O.S.No.439/77 by the respondent, the petitioner did not have exclusive title over it. There were other persons who were in joint ownership and possession of the said property along with him. 17. It would be of relevance at this stage itself to consider the difference in the provision of Order XXI Rule 95 of Code and Order XXI Rule 96 of the Code. It would be useful to extract the said provisions: Order XXI Rule 95: Delivery of property in occupancy of judgment debtor: Where the immovable property sold is in the occupancy of the judgment debtor or of some person on his behalf or of some person claiming under a title created by the judgment debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under Rule 94, the court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same. Order XXI Rule 96: Delivery of property in occupancy of tenant: Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under Rule 94, the court shall, on the application of the purchaser, order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, that the interest of the judgment debtor has been transferred to the purchaser. From the above extracted provisions, it is clear that only after the certificate has been issued under Rule 94 of Order XXI of the Code pursuant to sale, the purchaser can get actual delivery of the property in occupancy of the judgment debtor. Under Order XXI Rule 95 of CPC possession contemplated his actual possession. The rule applies where the property sold in execution is in occupation of the Judgment Debtor or some other person on his behalf or one claiming under title created by the Judgment Debtor but does not apply to cases where the property sold in execution or occupied by tenants or third parties in their own right. Under Rule 95 the purchaser on the strength of sale certificate is entitled to get delivery of possession through court. The implication of Order XXI Rule 96 of the Code is that if occupancy in respect of the property sold in auction in execution is by a tenant, symbolical possession can be granted by affixture of a copy of the certificate of sale on some conspicuous place and by proclamation by beat of drum that the interest of the judgment debtor has been transferred to the purchaser. 18. Therefore, one major difference between the two rules is that Order XXI Rule 95 of the Code, actual delivery of possession is taken and under Order XXI Rule 96 of the Code, symbolical delivery of possession is taken. Invoking of such rules would depend upon the person who is in actual possession either through the judgment debtor or through any independent right. Depending upon such circumstances, application has to be made by the auction purchaser. Invoking of such rules would depend upon the person who is in actual possession either through the judgment debtor or through any independent right. Depending upon such circumstances, application has to be made by the auction purchaser. In the instant case, when the first application was made under Order XXI Rule 96 of the Code, what was sought was only symbolical possession which was allowed. It is not in dispute that such an application was made within the prescribed period of limitation. Thereafter, the application has been made under Order XXI Rule 95 of the Code seeking actual delivery of possession. 19. The question raised is whether a second application in the instant case was barred under the law of limitation under Article 134, Limitation Act, where the prescribed period for filing the application for delivery of possession is one year. However, as there is no distinction between the application filed for symbolical possession or the application made for actual possession insofar as the period of limitation is concerned. 20. Under the Code, three situations are stipulated in which symbolical possession can be granted. They are: a) Under Order XXI Rule 1(b), Order XXI Rule 36(2) and c) Order XXI Rule 96. Symbolical possession is delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming the substance of the decree. Rules 35 and 36 pertain to cases where decree for possession of immovable property has been passed for delivery of the property. Rules 95 & 96 however refer to cases where immovable property belonging to Judgment Debtor is sold in execution of a decree passed against him and the purchaser has resisted in obtaining possession through the court. In both the situations possession may be either actual or symbolical. Symbolical possession under the above rules may operate as actual possession against the Judgment Debtor in certain circumstances but not against third parties who are not parties to the decree. In other words symbolical possession is not possession at all against third parties. In respect of any property which has been auctioned, if a portion of it is in possession of a stranger to the suit and another portion is in possession of the judgment debtor, symbolical possession can be given under Order XXI Rule 96, of the Code to the decree holder. In respect of any property which has been auctioned, if a portion of it is in possession of a stranger to the suit and another portion is in possession of the judgment debtor, symbolical possession can be given under Order XXI Rule 96, of the Code to the decree holder. This is also the position where joint ownership in respect of the auctioned property as there is no division of the said property by metes and bounds between the judgment debtor and other co-owners entitled to share in the said property. 21. It is also well settled position of law that if the decree holder or auction purchaser who is entitled to actual possession of the property initially makes an application for symbolical possession and obtains such possession, than he is not debarred from obtaining actual possession subsequently. In other words, if initially an application is made under order XXI Rule 96 of the Code and despite an order being made on the said application, subsequent application under Order XXI Rule 95 of the Code cannot be held to be either hit by the principle of res judicata or one barred by time. It would be in continuation of the earlier proceeding and there are instances where depending upon changes with regard to ownership or title of the property which is the subject matter of auction proceedings vis-à-vis judgment debtor as in the instant case, the initial application despite being allowed under Order XXI Rule 96 of the Code can be followed by a subsequent application being filed under Order XII Rule 95 of the Code. It is on the basis of occupancy of the property auctioned by the judgment debtor or through a person under him or by any person entitled to occupy the same in a different right and who is a stranger to the suit as well as execution that the Code contemplates two situations, by providing separate rules, depending upon when the property is in occupation of the judgment debtor and when it is in occupation of any other person than the judgment debtor, or under the judgment debtor or under the judgment debtor. Under these circumstances, in the instant case since the initial application filed under Order XXI Rule 96 of the Code was in time, the subsequent filed under Order XXI Rule 95 of the Code in Misc. Under these circumstances, in the instant case since the initial application filed under Order XXI Rule 96 of the Code was in time, the subsequent filed under Order XXI Rule 95 of the Code in Misc. No.15/07, in my considered view, cannot be hit by Article 134, Limitation Act. Hence, the executing court was justified in dismissing the application filed by the petitioner herein under Order VII Rule 11(d) of the Code. Accordingly, point nos.(1) and (2) are answered against the petitioner. 22. At this stage, it is necessary to consider the precedents cited at the Bar. 23. Learned Counsel for the petitioner has cited the case of Dev Raj Dogra Vs. Gyan Chand Jain reported in AIR 1981 SC 981 to bring out the differences between Order XXI Rule 95 and Rule 96 of the Code. While averting to the distinction between Rule 95 and 96 of Order XXI of the Code, the Hon’ble supreme Court has opined that for the invocation of Order XXI Rule 95, the property sold in auction must be in the occupancy of the judgment debtor or by some other person on behalf of judgment debtor or by a person claiming under a title created by the judgment debtor subsequent to the attachment of the property, while under Rule 96 of Order XXI, where symbolical possession of the property is granted, the property is in the occupancy of a tenant or some other person entitled to occupy the same in his own right. 24. Another decision on which strong reliance has been placed by the learned counsel for the petitioner is the case of Balakrishnan Vs. Malaiyandi Konar, reported in (2006) 3 SCC 49 where the suit based on promissory note was decreed and in a proceeding for execution of the decree, the Judgment Debtor’s property was purchased in a court auction and the sale was confirmed on 22.8.1983, an application for setting aside the sale was dismissed on 30.4.1983, prior to the confirmation of the sale. Against the said order of dismissal dated 3.4.1983, Civil Revision Petition was filed before the Madras High Court and by order dated 10.9.1987 the same was dismissed by upholding the findings of the executing court. Against the said order of dismissal dated 3.4.1983, Civil Revision Petition was filed before the Madras High Court and by order dated 10.9.1987 the same was dismissed by upholding the findings of the executing court. Subsequently on 13.8.1993 an application was filed under Order XXI Rule 95 of the Code for delivery of possession to which objection was filed stating that it was beyond the limitation period of one year prescribed under Article 134 of Limitation Act, 1963, the said objection was over-ruled by the trail court which ordered delivery, against which, Civil Revision Petition was filed before the High Court and the same was allowed. In fact, the sale itself was set aside and the matter was remitted back to the executing court with a direction to dispose of the objection afresh on the ground that the executing court while directing the sale had not kept in mind Order XXI Rule 64 of the Code and the requirements enjoined in the said provision. The High court remitted the matter back to the trail court for considering the objection in terms of Section 47 of the Code. Challenging the said order before the Hon’ble Supreme court, it was stated that the sale was confirmed on 22.8.1983 and the matter had attained finality. Subsequently, the execution proceeding for delivery was filed. The objection filed related to the applicability of Article 134 of the Limitation Act. On the said facts, the Hon’ble Supreme Court held that the limitation for the purpose of Article 134 starts from the date of confirmation of sale and not from the date when sale certificate is issued, the sale becomes absolute on confirmation under Order XXI Rule 92 of the Code effectively passing title and not when sale certificate is issued under Order XXI Rule 94 of the Code as there can be of variety of factors on account of which can be delay caused in issuing the sale certificate. That on failure of auction purchaser to avail the said quick remedy, the law relegates him to the remedy of regular suit for possession, subject to limitation period prescribed therefore and in the said case when the application was filed under Order XXI Rule 95 of the Code beyond the limitation period prescribed under Article 134, the Hon’ble Supreme Court has held that though no relief could be grated, nevertheless remanded the matter back to the Executing Court to consider the maintainability of the application for delivery of the property. This judgment is relied upon to submit that in the instant case, application filed under Order XXI Rule 95 of the Code was well beyond the date of confirmation of sale which was on 31.8.1999 and under the circumstances, the respondents herein could not have maintained the said application and the only remedy was to file a suit if the said suit was also within the prescribed period of limitation. 25. It is apparent from the said decision that after confirmation of the sale on 22.8.1993, E.P.No.80/1993 was filed on 13.8.1993 invoking Order XXI Rule 95 of the Code for delivery of possession. The said application was made for the first time nearly ten years after the confirmation of the sale. Under the circumstances the Hon’ble Supreme court held that no relief could be granted in view of Article 134 of the Limitation Act by holding that on failure to avail remedy under the execution proceeding by filing an application seeking delivery of possession within the prescribed period of one year as stated in Article 134 of the Limitation Act, law relegates an auction purchaser to seek remedy by way of regular suit for possession. However, by way of doing substantive justice to the parties, the matter was remanded back to the executing court to consider the maintainability of the application for delivery of the property. The said decision has to be distinguished as in the instant case an application under Order XXI Rule 96 of the Code was filed within the prescribed if limitation, when it was filed in the first instance. Since the filing of the second application under Order XXI Rule 95 of the Code is held to be a continuation to the earlier proceeding under Order XXI Rule 96 of the Code, the question of limitation would not arise. 26. Since the filing of the second application under Order XXI Rule 95 of the Code is held to be a continuation to the earlier proceeding under Order XXI Rule 96 of the Code, the question of limitation would not arise. 26. The learned Counsel for the respondent has relied upon AIR 1957 Andhra Pradesh 73 in the case of Uddandi Ramakrishna Mudali Vs. Sivarama Prasad Bahadur Varu to contend that if first application filed seeking possession is not dismissed for default of the decree holder, the order of delivery of possession would be in force and the subsequent application would be treated as one in time and has to be considered to be reminder to the Court to revive the application initially filed. 27. In AIR (29) 1942 Madras 718 in the case of Vydialinga Swamigal Vs. Karuppanna Goundan, it is held that the subsequent application filed is only a continuation of the previous application and what is of relevance is as to whether the first application was filed within the prescribed period of limitation and further if the application filed seeking delivery of possession could not be taken to its logical conclusion, the second application cannot be held to be barred. 28. In AIR 1975 SC 1767 , in the case of Balwant Narayan Bhagde vs. M.S. Bhagwat, while dealing with Sections 16 and 17 and Section 48 of Land Acquisition Act, in the concurrent judgment of his Lordship Untwalia J., a distinction has been made with regard to Order XXI Rules 35, 36, 95 and 96 of the Code which prescribe two modes of delivery of possession based upon the nature of property concerned and the same being ‘symbolical’ and ‘actual’ under which circumstances, the said rules would be applicable under Order XXI of the Code. 29. It has also been observed that a symbolical or formal delivery of possession as understood in law has the effect of dispossessing the judgment debtor from his right, title or to the property the same does not dispossess the person in actual possession in his own right not liable to be evicted under the decree or in pursuance of the auction sale. 30. The following decisions are also apposite to the present case: I) In the case of Govindappa Vs. 30. The following decisions are also apposite to the present case: I) In the case of Govindappa Vs. Premanand reported in ILR 1985 Karnataka 2214, the auction purchaser has sought possession by filing a Miscellaneous case under Order XXI Rule 95 of the Code which was dismissed as barred by limitation. Thereafter a suit was filed for possession which was decreed by the trial court but dismissed by the Civil Judge on the ground that the order in Miscellaneous case operated as res-judicata. It was held that in a case where decree holder is a purchaser, his only remedy is under Order XXI Rule 95 of the Code. When the decree holder is not the auction purchaser, his remedy is by way of filing the application under Order XXI Rule 95 of the Code or by separate suit or by resorting to both. Since in the instant case the decree holder is the auction purchaser, his remedy is only under the execution proceeding and not by way of separate suit. II) In AIR 1966 SC 470 (M.V.S. Manikayala Rao Vs. M. Narasimhaswamy & Others), it has been held that in case where the undivided share of co-parceners is purchased in an execution, the possession of the shares by co-parceners is a possession of shares of co-parceners after sale. There is no question of adverse possession when there is a symbolical delivery of joint possession to the auction purchaser and the suit filed by the auction purchaser for partition and possession within twelve years of delivery is within time. III) In AIR 1983 DELHI 65 also, it has been further held that where property is in the co-ownership of persons other than the Judgment Debtor or in the possession was obtained and thereafter an application was made for actual possession, there can be no bar in allowing the decree holder should not be deprived of actual possession under Order XXI Rule 95 of the Code if he had never previously prayed for obtaining such possession merely on the ground that he is deemed to have taken symbolical possession of the portion although he was entitled to actual possession under the decree. It was further observed that the question of res-judicata does not arise at all as there never had been any such prayer for actual possession at any time before. It was further observed that the question of res-judicata does not arise at all as there never had been any such prayer for actual possession at any time before. By referring to a decision in the case of Kaku Singh Vs. Gobind Singh reported in AIR 1959 Punjab 468, it was held that after obtaining symbolical possession, the decree holder can apply for delivery of actual possession. The execution proceedings either continues or starts afresh because when formal possession has been given in execution proceedings, a fresh application in execution proceedings can be maintained and actual possession can be obtained. On the other hand, if a decree holder has made an application in the first instance for actual possession to obtain only symbolical possession without any objection and subsequently prayed for actual possession, he cannot be permitted to do so vide AIR 1935 Calcutta 245. IV) In the case of Laxmi Ammal Vs. Sun Life Assurance Co., Canada reported in AIR 1934 MADRAS 264, it has been held that if on a previous occasion there is no legal, complete or effective delivery, the second execution petition is not a bar, therefore, unless the court satisfies itself that there has been real and actual physical delivery in execution of a decree as claimed by the decree holder, it cannot be said that the decree has been executed. 31. While applying the said rulings to the facts of the present case and considering the undisputed fact what becomes significant is that when the initial application under Order XXI Rule 96 of the Code was filed in Misc. No.29/91, the same was within the prescribed period of limitation. Although symbolical delivery of possession was ordered, there is no bar in law for seeking actual delivery of possession subsequently. Under the circumstances, the subsequent filing of an application under Order XXI Rule 95 of the Code in Misc. No.15/2007 on 13.12.2007 has to be held to be in continuation of the earlier application and hence, the same cannot be held to be hit by Article 134 of the Limitation Act. Under the circumstances, the Execution Court was justified in rejecting the application filed under Order VII Rule 11 of the Code. 32. The facts in the said decision reported in (2006) 3 SCC 49 are quite different from the facts in the present case. Under the circumstances, the Execution Court was justified in rejecting the application filed under Order VII Rule 11 of the Code. 32. The facts in the said decision reported in (2006) 3 SCC 49 are quite different from the facts in the present case. It is of significance to notice that in the present case an initial application for delivery of possession was made on 10.4.1991 by invoking Order XXI Rule 96 of the Code seeking symbolical delivery of possession in Mis.No.20/91, but Misc. No.15/07 was filed for seeking actual delivery of possession by invoking Order XXI Rule 95 of the Code. The second application is only a continuation of the earlier application or proceeding and it is not for the first time that the application was filed under Order XXI Rule 95 of the Code. Under the circumstances the decision in the above case would have to be distinguished from the instant case. However, in view of the fact that intervening events pursuant to the proceeding held on 27.1.2003 in Execution No.103/02 arising out of O.S.No.161/91 would have to be considered by the execution court, the matter has to be remanded. In case of Laxmi Ammal Vs. Sun Life Assurance Co., Canada reported in AIR 1934 Madras 264 it has been held that if on a previous occasion there is no legal, complete or effective delivery, the second execution petition is not a bar, therefore, unless the court satisfies that there has been real actual physical delivery in execution of a decree as claimed by the decree holder, it cannot be said that the decree has been executed. Since in the instant case by virtue of the proceedings held on 27.1.2003, the property sold by way of auction in this proceeding was also the subject matter of the mahazar in Ex. Petition No.103/02 arising out of O.S. No.161/91, it becomes necessary for the executing court to now dispose of the application filed under Order XXI Rule 95 of the Code by giving a finding as to whether the decree in the instant case is satisfied or not and accordingly dispose of the application filed under Order XXI Rule 95 of the Code. For the aforestated reasons, the order dated 30.1.2009 to that extent is confirmed. For the aforestated reasons, the order dated 30.1.2009 to that extent is confirmed. The application filed under Order XXI Rule 95 of the Code is held to be within the prescribed period of limitation, but taking into consideration the developments which have occurred in O.S.No.161/1991 and also in FTP 1/1996 and the subsequent Execution Petition filed in Execution No.103/2002 and the orders made therein, the Execution Court would have to now consider the application filed under Order XXI Rule 95 on merits since the said material was not placed on record before the execution court. I further find that no specific reasons have been assigned for issuance of delivery warrant, while dismissing the application filed under Order VII Rule 11 of the Code. Liberty is reserved to both the sides to place the material before the Execution Court for the purpose of disposal of the application filed under Order XXI Rule 95 of the Code in accordance with law. The said proceedings shall be completed within a period of three months after receipt of the copy of the order of this Court. Consequently, the order regarding issuance of delivery warrant returnable by 2.3.1999 cannot be given effect to pending disposal of the application under Order XXI Rule 95 of the Code in terms of the observations of this order. Consequently, this revision petition is disposed of in the above terms.