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2014 DIGILAW 832 (HP)

Himachal Country Resorts Limited v. Ram Kumar

2014-07-03

DHARAM CHAND CHAUDHARY

body2014
JUDGMENT Dharam Chand Chaudhary, J. 1. Challenge herein is to an order dated 5.7.2013, passed by learned Civil Judge (Senior Division), Sirmaur District at Nahan in Execution Petition registered as CMA No. 19/10 of 2007, whereby the objections to the decree raised by the petitioner J.D. have been dismissed and warrant of possession of the land in dispute ordered to be issued. 2. The facts of the case, in a nutshell, are that one Mast Ram (since dead), predecessor-in-interest of respondents No.1-a to 1-d in the Court below, agreed to sell land measuring 18.42 square meters, entered in Khata/Khatauni No. 410/615, Khasra No. 1347 situated at Muhal Haripur Nahan, on payment of consideration, i.e. Rs. 32,000/-. The sale consideration, however, subsequently was settled at Rs. 50,000/- in an amicable settlement. Out of the sale consideration, an amount to the tune of Rs. 5,000/- was given in advance at the time of execution of agreement, whereas remaining Rs. 45,000/- was agreed to be paid at the time of execution of the sale deed. Deceased defendant Mast Ram failed to execute the sale deed as agreed upon. This has led in filing Civil Suit No.28-I of 1990, in the Court of Senior Sub Judge, Sirmaur District at Nahan, which was dismissed. In an appeal preferred against the judgment and decree passed by learned trial Court, the parties compromised the suit and pursuant to that learned District Judge had decreed the suit vide judgment and decree dated 5.9.1994. Deceased Mast Ram, however, failed to execute the sale deed despite compromise decree passed by learned District Judge and to the contrary sold the suit land to the petitioner, herein vide sale deed dated 29.6.1996. The plaintiff in order to execute the decree passed by learned District Judge filed petition registered as Execution Petition No. 34/10 of 1998. In that petition, the subsequent purchaser, i.e. the petitioner, was also impleaded as one of the respondents J.Ds. The petitioner J.D. had preferred objections during the course of execution proceedings. 3. Learned Executing Court on taking into consideration the entire material and also hearing the parties on both sides, however, had dismissed the objections vide order dated 15.12.2000 and directed the petitioner J.D. to execute the sale deed. The petitioner J.D. when failed to comply with the order ibid, the plaintiff filed an application for implementation thereof. 3. Learned Executing Court on taking into consideration the entire material and also hearing the parties on both sides, however, had dismissed the objections vide order dated 15.12.2000 and directed the petitioner J.D. to execute the sale deed. The petitioner J.D. when failed to comply with the order ibid, the plaintiff filed an application for implementation thereof. The petitioner J.D. however, did not come forward to execute the sale deed even after being directed to do so by learned Executing Court, therefore, the Civil Nazir of the Court was directed to execute and register the sale deed before the Sub Registrar, Nahan pursuant to the judgment and decree passed by learned District Judge. The sale deed was ultimately executed with the intervention of the Executing Court on 23.6.2005. However, so far the possession of the suit land is concerned, as per recital in the sale deed, the plaintiff was put in symbolic possession of the suit land on the spot. The application on the execution of the sale deed being not pressed any further by the plaintiffs-decree holders, was dismissed as fully satisfied vide order passed on 11.7.2005. The fact remains that the possession of the suit land remained with the petitioner J.D. Since he failed to put the plaintiffs-decree holders in actual and physical possession of the suit land, therefore, the present execution proceedings came to be initiated with a prayer that the possession of the suit land may be ordered to be delivered to the decree holders by issuance of warrant of possession. 4. The petitioner J.D. has contested this petition and also filed objections. Learned Executing Court after affording the parties due opportunity of being heard has, however, dismissed the objections vide impugned order and ordered to issue the warrant of possession of the suit land. However, no further proceedings in the execution petition could take place in view of the same being stayed by this Court vide interim order passed in CMP No. 18561 of 2013 on 1.11.2013. 5. However, no further proceedings in the execution petition could take place in view of the same being stayed by this Court vide interim order passed in CMP No. 18561 of 2013 on 1.11.2013. 5. The petitioner J.D. who, as a matter of fact, has purchased the suit land after the suit was decreed by learned District Judge, hence subsequent purchaser has questioned the legality and validity of the impugned order on the grounds, inter alia, that allowing the delivery of possession to the decree-holders when there is no decree to this effect passed in this case, is contrary to the provisions contained under Section 22 of the Specific Relief Act. 6. Shri Bipin C. Negi, learned Counsel representing the petitioner J.D. has vigorously contended that since there is no decree qua putting the decree-holders in possession of the suit land passed and that the execution petition previously filed was dismissed as fully satisfied on the execution of the sale deed, the execution proceedings could have not been initiated subsequently. Learned Counsel has also brought to the notice of this Court the provisions contained under Section 22 of the Specific Relief Act and on the strength thereof urged that in view of the fact that relief of possession was never claimed by the plaintiffs-decree holders, no such relief could have been granted in execution proceedings. 7. On the other hand, Shri Suneet Goel, learned Counsel representing the plaintiffs-decree holders, has urged that as per the legal principles settled at this stage before execution of the sale deed there was no occasion to the plaintiffs-decree holders to have sought the relief of possession and also that such relief can even be sought at any stage of the proceedings including execution proceedings. It has also been contended that in the previously instituted execution petition only direction to the petitioner J.D. to execute the sale deed was sought and the sale deed ultimately came to be executed, of course, with the intervention of the Court, therefore, that petition was rightly dismissed as fully satisfied. It has, therefore, been urged that the petition filed for execution of the decree subsequently being fully maintainable has rightly been entertained. 8. It has, therefore, been urged that the petition filed for execution of the decree subsequently being fully maintainable has rightly been entertained. 8. Having gone through the entire record and analyzing the rival submissions, although in the objections filed to the petition there is no challenge to the right of the decree-holders qua seeking the possession of the suit land and also the maintainability of the execution petition and such questions have been raised only during the course of hearing of this petition, yet, the questions so raised being legal, this Court deems it proper to go into the same and adjudicate in the light of the arguments addressed on both sides. 9. Much has been said about the provisions contained under Section 22 of the Specific Relief Act, which read as follows: “22. Power to grant relief for possession, partition, refund of earnest money, etc.–– (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for–– (a) Possession, or partition and separate possession, of the property, in addition to such performance. (b) Any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or (made by) him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief. (3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21.” 10. The bare perusal of the provisions, ibid, reveals that in each and every suit filed for specific performance of the contract, the relief finds mention under sub-section 1(a) thereof has to be sought, however, the words appropriate case employed in this Section reveal that the relief can be sought depending upon case to case. The bare perusal of the provisions, ibid, reveals that in each and every suit filed for specific performance of the contract, the relief finds mention under sub-section 1(a) thereof has to be sought, however, the words appropriate case employed in this Section reveal that the relief can be sought depending upon case to case. The Hon’ble Apex Court had an occasion to interpret Section 22 of the Act in Babu Lal vs. M/s. Hazari Lal Kishori Lal and others, AIR 1982 SC 818 . Like the present case before this Court in Babu Lal’s case also the suit was filed for specific performance of the contract without seeking the relief of possession. The suit was decreed only for the relief of specific performance of the contract. In that case also the vendee, however, failed to execute the decree in favour of the vendor and rather in defiance of the agreement to sell sold the same to a third party. The trial Court had dismissed the suit. In an appeal, learned Additional District Judge, however, decreed the suit for the relief of specific performance of the contract without there being any decree passed for possession also, such relief being not claimed in the suit. In the second appeal, the High Court has confirmed the judgment and decree passed by the first appellate Court with a modification, i.e. direction to the subsequent vendors to execute the sale deed in favour of the plaintiffs and also decreed the suit for possession of the suit land. In the execution proceedings the J.D. raised objections including that since the decree holders did not claim the relief for possession in the suit and subsequently no decree for the relief of possession in terms of Section 22 of the Specific Relief Act could have been passed, therefore, it was submitted that the decree was in executable. The Executing Court while partly allowing the objections though directed the J.D. to execute the sale deed in favour of the decree-holders, however, declined the relief of possession leaving it open to the decree holders to seek remedy for possession of the suit land by filing a separate suit. Learned Additional District Judge also confirmed the order so passed in two separate appeals preferred by the decree-holders and J.D. The matter again went to the High Court. Learned Additional District Judge also confirmed the order so passed in two separate appeals preferred by the decree-holders and J.D. The matter again went to the High Court. The High Court, has dismissed the appeal as well as revision preferred by the JD, however, allowed the appeal preferred by the decree holders and the order passed by the Executing Court declining thereby the relief for possession was modified to the effect that the decree-holders shall be entitled to possession also. The J.D. feeling aggrieved and dissatisfied by the orders so passed by the High Court filed an appeal in the Apex Court, which has been decided vide judgment under challenge. The main contention raised in the Apex Court was that the decree-holders having not claimed any relief for possession in the suit, they cannot claim the same at a subsequent stage and that on the face of clear mandate of sub-section (2) of Section 22 of the Act it was not open to the High Court to have allowed the relief of possession at the execution stage and in any case without an amendment of the plaint. The Apex Court though considered the contentions so raised to be plausible, but in the given facts and circumstances of that case, particularly the suit for the relief of possession was decreed by the High Court in the second appeal not inclined to accept the same. The Apex Court has interpreted the scope of Section 22 of the Act as under: “10. In this state of the law Legislature intervened and on the basis of the report of the Law Commission enacted section 22 in 1963 as it stands. 11. Section 22 enacts a rule of pleading. The Legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance, even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed. The Legislature has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the Court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession. 12. The Legislature has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the Court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession. 12. The section enacts that a person in a suit for specific performance of a contract for the transfer of immovable property, may ask for appropriate reliefs, namely, he may ask for possession, or for partition, or for separate possession including the relief for specific performance. These reliefs he can claim, notwithstanding anything contained in the Code of Civil Procedure, 1908, to the contrary. Sub-section (2) of this section, however, specifically provides that these reliefs cannot be granted by the Court, unless they have been expressly claimed by the plaintiff in the suit. Sub-section (2) of the section recognised in clear terms the well-established rule of procedure that the Court should not entertain a claim of the plaintiff unless it has been specifically pleaded by the plaintiff and proved by him to be legally entitled to. The proviso to this sub-section (2), however, says that where the plaintiff has not specifically claimed these reliefs in his plaint, in the initial stages of the suit, the Court shall permit the plaintiff at any stage of the proceedings, to include one or more of the reliefs, mentioned above by means of an amendment of the plaint on such terms as it may deem proper. The only purpose of this newly enacted provision is to avoid multiplicity of suits and that the plaintiff may get appropriate relief without being hampered by procedural complications. 13. The expression in-sub-section (1) of S. 22 in an appropriate case is very significant. The plaintiff may ask for the relief of possession or partition or separate possession in an appropriate case. 13. The expression in-sub-section (1) of S. 22 in an appropriate case is very significant. The plaintiff may ask for the relief of possession or partition or separate possession in an appropriate case. As pointed out earlier, in view of Order 2, Rule 2 of the Code of Civil Procedure, some doubt was entertained whether the relief for specific performance and partition and possession could be combined in one suit; one view being that the cause of action for claiming relief for partition and possession could accrue to the plaintiff only after he acquired title to the property on the execution of a sale deed in his favour and since the relief for specific performance of the contract for sale was not based on the same cause of action as the relief for partition and possession, the two reliefs could not be combined in one suit. Similarly, a case may be visualized where after the contract between the plaintiff and the defendant the property passed in possession of a third person. A mere relief for specific performance of the contract of sale may not entitle the plaintiff to obtain possession as against the party in actual possession of the property. As against him, a decree for possession must be specifically claimed or such a person is not bound by the contract sought to be enforced. In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simpliciter, without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree against him completely he is bound not only to execute the sale-deed but also to put the property in possession of the decree-holder. This is no consonance with the provision of section 55 (1) of the Transfer of Property Act which provides that the seller is bound to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature admits. 14. There may be circumstances in which a relief for possession cannot be effectively granted to the decree-holder without specifically claiming relief for possession, viz. where the property agreed to be conveyed is jointly held by the defendant with other persons. 14. There may be circumstances in which a relief for possession cannot be effectively granted to the decree-holder without specifically claiming relief for possession, viz. where the property agreed to be conveyed is jointly held by the defendant with other persons. In such a case the plaintiff in order to obtain complete and effective relief must claim partition of the property and possession over the share of the defendant. It is in such cases that a relief for possession must be specifically pleaded. 15. In the instant case, it is pointed out on behalf of the petitioner that the possession was not with the respondents No. 6 to 9 but was with a third person namely, the petitioner, who was subsequent purchaser and, therefore, this was an appropriate case where the relief for possession should have been claimed by the plaintiff-respondents No. 1 to 5. 16. It may be pointed out that the Additional Civil Judge had decreed the suit for specific performance of the contract. The High Court modified decree to the extent that the sale deed was to be executed by respondents No. 6 to 9 together with the petitioner. In short, the decree was passed by the High Court not only against respondents Nos. 6 to 9 but also against the subsequent purchaser i.e. the petitioner and thus the petitioner was himself the judgment debtor and it cannot be said that he was a third person in possession and, therefore, relief for possession must be claimed The contention on behalf of the petitioner is that the relief for possession must be claimed in a suit for specific performance of a contract in all cases. This argument ignores the significance of the words in an appropriate case. The expression only indicates that it is not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for specific performance of a contract for the transfer of the immovable property. That has to be done where the circumstances demanding the relief for specific performance of the contract of sale embraced within its ambit not only the execution of the sale deed but also possession over the property conveyed under the sale deed. That has to be done where the circumstances demanding the relief for specific performance of the contract of sale embraced within its ambit not only the execution of the sale deed but also possession over the property conveyed under the sale deed. It may not always be necessary for the plaintiff to specifically claim possession over the property, the relief of possession being inherent in the relief for specific performance of the contract of sale. Besides, the proviso to subsection (2) of section 22 provides for amendment of the plaint on such terms as may be just for including a claim for such relief at any stage of the proceedings. 17. The word proceeding is not defined in the Act. Shorter Oxford Dictionary defines it as carrying on of an action at law, a legal action or process; any act done by authority of a court of law; any step taken in a cause by either party. The term proceeding is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word proceeding in section 22 includes execution proceedings also. In Rameshwar Nath vs. Uttar Pradesh Union Bank, 1956 All 586 such a view was taken. It is a term giving the widest freedom to a Court of law so that it may do justice to the parties in the case. Execution is a stage in the legal proceedings. It is a step in the judicial process. It makes a stage in litigation. It is a step in the ladder. In the journey of litigation there are various stages. One of them is execution. 18. In Mahender Nath Gupta vs. M/s. Moti Ram Rattan Chand, AIR 1975 Delhi 155, the Delhi High Court endorsed the view taken in Balmukand vs. Veer Chand, AIR 1954 All 643 (supra) that where in a suit for specific performance of the contract for sale relief for possession is not claimed and consequently the decree passed in the suit contains no relief for delivery of possession. The Court executing the decree is competent to deliver possession, an order directing delivery of possession being merely incidental to the execution of the deed of sale. The Court however, observed that on 1.3.1964 Specific Relief Act of 1963 came into force and this Act altered the law by enacting section 22. It made it necessary for the plaintiff to ask specifically the relief of possession in suits for specific performance. The Court, however, held that section 22 of the Specific Relief Act of 1963 had no application to that case as the decree was passed when the old Act was in force. 19. The same High Court, however. in M/s. Ex-Servicemen Enterprises Pvt. Ltd. vs. Sumey Singh, AIR 1976 Delhi 56, considered the effect of section 22 (2) with its proviso. In that case the decree did not give the plaintiff the relief of possession. The question arose. Was the Court powerless to put him in possession of the property though he had a decree for specific performance in his favour? The Delhi High Court observed: "Section 22 enacts a rule of pleading. The legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance even though strictly speaking the right to possession accrues only when specific performance is decreed. The legislature has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the Court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession. In my opinion the proviso gives ample power to a Court to allow the amendment of the plaint even at this stage. The proviso says that the amendment of the plaint can be allowed at any stage of the proceedings on such terms as may be just for including a claim for possession where the plaintiff has not claimed such relief in his original plaint. The term proceeding is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. The term proceeding is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word proceeding in Section 22 in my opinion includes execution proceedings also." The High Court had relied upon Rameshwar Nath vs. U.P. Union Bank, AIR 1956 All 586 for its decision in this case. We are in complete agreement with the view taken by the Delhi Court on this case. 20. It is thus clear that the Legislature has given ample power to the court to allow amendment of the plaint at any stage, including the execution proceedings. In the instant case the High Court granted the relief of possession and the objection raised on behalf of the petitioner is that this was not possible at the execution stage and in any case the Court should have allowed first an amendment in the plaint and then an opportunity should have been afforded to the petitioner to file an objection. 21. If once we accept the legal position that neither a contract for sale nor a decree passed on that basis for specific performance of the contract gives any right or title to the decree-holder and the right and the title passes to him only on the execution of the deed of sale either by the judgment-debtor himself or by the Court itself in case he fails to execute the sale deed, it is idle to contend that a valuable right had accrued to the petitioner merely because a decree has been passed for the specific performance of the contract. The limitation would start against the decree-holders only after they had obtained a sale in respect of the disputed property. It is, therefore, difficult to accept that a valuable right had accrued to the judgment debtor by lapse of time. Section 22 has been enacted only for the purpose of avoiding multiplicity of proceedings which the law Courts always abhor.” 11. It is, therefore, difficult to accept that a valuable right had accrued to the judgment debtor by lapse of time. Section 22 has been enacted only for the purpose of avoiding multiplicity of proceedings which the law Courts always abhor.” 11. After taking note of the legal position discussed in detail hereinabove and also the litigation in that case projected, the Apex Court has been pleased to observe that it will be a travesty of justice to ask the decree-holders to file a separate suit for possession particularly, when the objections raised by the judgment-debtor, in the opinion of the Apex Court, were hyper-technical. I deem it appropriate to quote here para 23 of the judgment supra, which reads as follows: “23. There has been a protracted litigation and it has dragged on practically for about 13 years and it will be really a travesty of justice to ask the decree-holders to file a separate suit for possession the objection of the petitioner is hypertechnical. The execution Court has every jurisdiction to allow the amendment. The only difficulty is that instead of granting a relief of possession the High Court should have allowed an amendment in the plaint. The mere omission of the High Court to allow an amendment in the plaint is not so fatal as to deprive the decree-holders of the benefits of the decree when section 55 of the Transfer of property Act authorizes the transferee to get possession in pursuance of a sale deed.” 12. Examining the case in the light of the legal principles laid down in the judgment cited supra, I find the present a case on better footing for the reason that defendant Mast Ram (since dead) had sold the land to the petitioner J.D. even after the judgment and decree for the relief of specific performance of contract was passed by learned District Judge and for its violation he was ordered to be imprisoned in civil imprisonment. Looking to the conduct of the subsequent vendee, i.e., the petitioner J.D. even after dismissal of the objections, he preferred objections to the decree in the previously instituted execution petition, failed to execute the sale deed. The sale deed ultimately could be executed with the intervention of the Court, i.e. the Court after having detailed the Civil Nazir to get the sale deed executed. The sale deed ultimately could be executed with the intervention of the Court, i.e. the Court after having detailed the Civil Nazir to get the sale deed executed. No doubt, the relief for possession was not sought by the deceased plaintiff Mohan Lal, the predecessor-in-interest of the respondents decree-holders, however, the question of the delivery of possession to the respondents-decree-holders could have arisen only after the execution of the sale deed, as has been held by the Hon’ble Apex Court in Babu Lal’s case supra. 13. True it is that the provisions contained under Section 22(2) of the Specific Relief Act have been interpreted to claim all the reliefs in a suit for specific performance of contract including the relief for possession also in order to cut-short the delay and multiplicity of litigation, however, at the same time, as per the law laid down by the Apex Court in the judgment supra, the rules governing the procedure are meant to advance justice and not to retard it. 14. Above all, as noted in para supra in a suit for specific performance of the contract, the relief of possession even can be claimed during the course of execution proceedings also. The suit was instituted in the year 1990 and it was decreed in the year 1994, therefore, at this stage when almost 20 years have elapsed coupled with the factum of the execution of the sale deed in favour of the respondents/decree-holders on payment of the sale consideration, it would certainly be a travesty of justice in case they are asked to file a separate suit for possession, that too, when the petitioner J.D. procured the sale of the suit land in his favour in a clandestine manner, that too, after passing of the judgment and decree for specific performance of the contract. I, therefore, find no illegality or irregularity committed by learned Executing Court while dismissing the objections and issuing warrant of possession. 15. I, therefore, find no illegality or irregularity committed by learned Executing Court while dismissing the objections and issuing warrant of possession. 15. If coming to the second limb of arguments addressed on behalf of the petitioner J.D. that in view of dismissal of the earlier execution petition as fully satisfied, subsequent execution petition could have not been filed, I find no substance therein for the reason that in the earlier execution petition only the execution of the sale deed was sought, therefore, on the execution of the sale deed in favour of the respondents/decree-holders the same was not rightly pressed and, as such, was dismissed being fully satisfied. It is the petitioner J.D. who is still in possession of the suit land irrespective of the execution of the sale deed in favour of the plaintiffs-decree-holders. What to speak of delivery of possession, the petitioner J.D. even failed also to come forward to execute the sale deed consequent upon the dismissal of the objections preferred in the previously instituted execution petition and the direction to execute the sale deed. Such conduct leads to the only conclusion that the petitioner J.D. intentionally and deliberately lingered on the matter and involved the respondents-decree holders in an uncalled for litigation with the sole idea to enjoy the suit land even after passing of the judgment and decree, which has attained the finality and now he has left with no right, title or interest in the suit land. 16. No doubt, the Apex Court in Shew Bux Mohata and another vs. Bengal Breweries Ltd. and others, AIR 1961 SC 137 , has concluded that on the dismissal of the previously instituted execution petition as fully satisfied a fresh execution petition is not maintainable. Such conclusion, however, has been drawn in the light of peculiar facts and circumstances of that case as the decree holders had taken the possession of the property in question by allowing one of the tenants to retain that portion of the premises which was in his possession. Not only this when the Court official, i.e. Civil Nazir deputed for delivery of possession visited the property in question, submitted the report that the decree-holder was put in possession of the suit property on the spot and the decree-holder even deployed security guard also. Not only this when the Court official, i.e. Civil Nazir deputed for delivery of possession visited the property in question, submitted the report that the decree-holder was put in possession of the suit property on the spot and the decree-holder even deployed security guard also. Such, however, are not the facts of the case before this Court because the petitioner J.D. has not delivered the possession of the suit land to the respondents/decree-holders despite the execution of the sale deed and their possession is only symbolic and not actual and physical. Therefore, in such a situation and when the law permits the delivery of possession even during the course of execution proceedings, the decree-holders were left with the only remedy to claim possession by filing execution petition afresh. 17. In view of the above discussion, the points though not raised in the objections preferred by the petitioner J.D. in the execution proceedings, however, raised for the first time during the course of arguments, are without any merit and on this score he cannot succeed. The impugned order, therefore, cannot be said to be legally and factually unsustainable and is confirmed. Consequently, this petition fails and the same is accordingly dismissed. The parties to appear before learned Civil Judge (Senior Division), Sirmaur District at Nahan on 26.7.2014. The record be sent back alongwith copy of this judgment forthwith so as to reach in the Court below well before the date fixed.