Ravindran vs M.S. Manickavel

K.M. Natarajan, J.—This revision is directed by the respondent (third party) against the order passed in E.P.8 of 1987 (in O.S.103 of

1957 Sub Court, Madurai) on the file of the Sub Court, Devakottai. The facts which are necessary for the disposal of the revision are briefly as

follows: The respondent in this petition is the decree holder in the suit in O.S. 103 of 1957 on the file of the Sub Court, Madurai. A preliminary decree was passed on 5-3-1960 and a final decree was passed on 18-8-1966 in which the respondent was allotted the petition mentioned property and other items to his share. In pursuance of the final decree, he filed E.P. 9 of 1985 for actual delivery of possession of the property under Order 21 rule 35 C.P. Code, against one Sethuraman who was the fourth defendant in the said suit. The said application was allowed. The said Sethuraman (respondent in E.P. 9 of 1985) was unsuccessful before this Court and the Supreme Court. When the SLP was pending in the

Supreme Court, the respondent herein went to take delivery of possession. Possession was obstructed by the tenants who were in occupation of the premises, including the revision petitioner herein. Thereupon, the Amin could not effect delivery and reported to the court to that effect that the tenants prayed for time to vacate the premises. The revision petitioner and other obstructors filed E.A. 137 of 1986 to dismiss the execution

petition. Later, it is stated that they were also willing to attorn the tenancy in favour of the respondent after recognising the respondent as their

landlord. They also made an endorsement to that effect. The revision petitioner herein also made an endorsement in E.A.137 of 1986 to the effect that he also attorned the tenancy to the respondent Manickavel Nadar and that he reserves his right to launch proceedings against his vendor

Sethuraman, who is the respondent in the main E.P.9 of 1985. The respondent herein made an endorsement in E.P.9 of 1985 on 9-12-1986,

staling that since the tenants agreed to attorn the lease in favour of him and filed memo to the said effect, the same may be recorded and orders may by passed. He along with his counsel made an endorsement on 11.12.1986 that he took delivery of the property. Thereupon the Court below passed an order to the effect that delivery was recorded and the E.P. is closed. The said order was passed on 11.12.1986.

Now, the respondent herein filed a second execution petition in E.P.8 of 1987 under Order 21 rule 35, C.P.C. read with S. 151, C.P.C. to the

effect that he has been given only symbolical delivery on 25.11.1986 and that necessary orders may be passed for effecting actual, legal and physical possession of the property to him. The said application is resisted by the revision petitioner herein and he filed two counters. In the first

counter, it is stated that his mother has been in occupation of the premises for about 30 years, that she has also put up a building in the premises by spending huge amounts and that they are entitled to the benefits of the City Tenants Protection Act. His mother purchased the same on 7-4-1984

for Rs.60000 from Sethuraman, that the respondent came to his mother and offered to pay a sum of Rs.25000 and that since his mother did not

agree, the petition is filed. Again, in the additional counter, it is stated that since he along with other tenants had attorned the tenancy and the respondent herein accepted the same and took symbolical delivery and the same has been recorded and the petition was closed, the subsequent petition for execution for the same relief is not maintainable and on that ground, the petition is liable to be dismissed.

The learned Subordinate Judge, for the reasons assigned in the judgment, overruled the objections and allowed the execution petition and

ordered delivery. Aggrieved by the same, this revision is filed.

The learned counsel for the revision petitioner mainly submitted that in view of the symbolical delivery already effected in the previous E.P. 9 of

1935 after the respondent herein having accepted the attornment of the tenancy, his remedy is only to file a petition for eviction under the Tamil

Nadu Buildings (Lease and Rent Control) Act, and not to file a second application for actual delivery and as such, the execution petition is not maintainable and the Court below has not properly appreciated the various rulings cited in support of the said contention.

On the other hand, the learned counsel for the respondent, Mr. M. Raghavan, submitted that on the date when the attornment of the tenancy

was made, the revision petitioner was admittedly not a tenant, but the other seven persons alone were the tenants and their attornment was

accepted, and the acceptance of the attornment of the tenancy made by them alone is subsisting. Since the revision petitioner did not subsequently offer any rent and there is absolutely no term of lease set out and since he only set up title in favour of his mother, the alleged symbolical delivery is not a legal, complete and effective delivery and as such the second application is certainly maintainable. Further, the procedures contemplated under 0 .21, Rr. 35 and 36 C.P.C. have not been followed while effecting the symbolical delivery since the Amin did not go to the suit property,

proclaim the same and effect such delivery and as such, the delivery is not valid.

The question that arises for consideration in this revision petition is whether the delivery already effected in E.P. 9 of 1985 is not a legal,

complete and effective delivery of possession as contended by the respondent and whether the second application is maintainable for the above

reasons.

On going through the records, in E.P. 9 of 1985, it is seen that the respondent herein filed the petition under O.21, R. 11 C.P.C., for putting him

in actual physical possession of the petition mentioned property from the respondent therein, the fourth respondent in the suit. After overruling the

objection, the court ordered delivery by 11.4.1986 and that the delivery was stayed by the orders of this Court. Subsequently, after the stay was

vacated, warrant was issued to the Amin. The Amin reported that when he went to take possession on 11.11.1936, the persons who were in occupation of the premises locked the premises and obstructed and that it was not possible to effect delivery without police protection and orders for breaking open the lock. Again on 17.11.1986, when he went there with the police help, the tenants who were in occupation of the premises refused to effect delivery and they prayed for time for effecting delivery. Hence, he reported to the court on 26.11.1986. The persons who were in occupation including the revision petitioner filed a petition in E. A. 137 of 1986 to uphold their objections and dismiss the application. But,

subsequently, they made an endorsement to the effect that they attorned the tenancy in favour of the respondent herein and they also filed a memo to the same effect. This revision petitioner also made an endorsement to the effect that he also attorned the tenancy to the respondent herein and that he reserved his right to proceed against Sethuraman who is the respondent in the said E.P. Thereafter, on 9.12.1986 the respondent herein made an endorsement and filed a memo to the effect that since the tenants agreed to attorn the tenancy in his favour, the same may be recorded and that he is willing to take symbolical delivery. On 11.12.1986 an endorsement was made to the effect that he took delivery of the property. In view of the same, delivery was recorded and the E.P. was closed. It is seen from para 8 of the second E.P. (E.P. 8 of 1987) the respondent himself has stated that the lower Court has given symbolical delivery to him, and he prayed for orders for granting actual physical possession of the petition mentioned property. The said application is resisted by the petitioner herein mainly on the ground that such an application is not maintainable and that his remedy is only to institute proceeding to recover possession under the Tamil Nadu Buildings (Lease and Rent Control)

Act and not to file a second application. The contention of the respondent is that though he accepted the attornment, the revision petitioner was not a tenant under the respondent defendant at that time; but he claimed title through his mother. Further, he did not subsequently offer any rent as was done by the other persons who are tenants and in the circumstances the said symbolical delivery cannot be said to be a legal, complete and effective delivery and that the petition is maintainable. Further, the procedures have not been followed as contemplated under O.21, R.36 C.P.C.

and it is only a paper delivery. Various decisions were relied on by both parties in support of their contentions.

On going through the materials placed before me, I find that though the revision-petitioner herein had made an endorsement on 25-11-1986 that

he attorned the tenancy to the respondent and that he reserves his right to launch proceedings against his vendor Sethuraman, it is seen from the very petition on which he made the endorsement, namely E.A. 137 of 1986, it is clearly stated that the portion which was in his occupation was purchased from the owner of the property, that he has been paying tax, that he is in occupation in his own right, that it is only the other petitioners who were occupying the premises under the fourth defendant, namely, Sethuraman, who is the respondent in the E.P. as tenants, that since his landlord Sethuraman took the matter to the Supreme Court and that he has got a chance of success, the execution petition has to be dismissed. It is seen that though the respondent filed a petition for actual delivery of possession, in view of the fact that the tenants agreed to attorn the lease in his favour and pay the rent, he had no objection to accept their offer. Even though the revision petitioner herein was claiming title, he too made an endorsement to the effect that he would also attorn the tenancy. In view of the offer made by the tenants that they would attorn the tenancy and that the decree holder accepted the same, delivery was recorded and the petition was closed. As rightly observed by the learned counsel for the

respondents, there is nothing to show that the procedure contemplated under O.21 R. 36 C.P.C. has been followed. According to the said rule,

the court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property. It is only on the basis of the endorsement made by the parties, the alleged symbolical delivery is said to have been effected and the petition was closed. It is the admitted case of both the parties that subsequently the other persons who attorned the tenancy were paying rent and that there was no dispute. So far as the revision petitioner is concerned, it is seen from the affidavit filed by the respondent herein in the said E.P. that after making such an endorsement that he would attorn, which is not a valid one since there was no tenancy between the owner of the property, namely the respondent and the revision petitioner, he claimed independent title in himself. It was also stated that subsequently he was resisting the respondent from having access to the property and refusing to pay rent and also claiming title to the same. Hence the respondent has come forward with the petition on the ground that the alleged symbolical delivery is not a legal, complete and effective delivery. Even in the subsequent application filed by the respondent the revision petitioner only resisted the claim in his original counter that he and his mother were not evicted from the property by virtue of the order passed in E.P.9 of 1985, that his mother purchased the property from Sethuraman on 7.4.1984 for a sum of Rs.60000, that she also put up a construction, that they have been in occupation of the premises in their own right and that since he and his mother are not willing to part with their right by receiving Rs.25000, this petition is filed. It is only long after that, on 10.4.1987 an additional counter was filed wherein for the first time it was contended that in view of the fact that the attornment of tenancy in favour of the respondent herein by the revision petitioner and other tenants was accepted by the respondent and he had made an endorsement to the same effect, it is not open to him to file the subsequent

application. It is to be noted that in pursuance of the impugned order, passed in E.P.8 of 1987, the respondent got possession through Court with police aid from the revision petitioner and the same has been recorded, and subsequently. the stay application filed in C.M.P. 10458 of 1987 was also dismissed. The learned counsel for the revision petitioner submitted that if the revision petitioner succeeds in the revision, he would apply for

re-delivery. In view of the above admitted facts, the revision petitioner was not a tenant of the respondent at a point of time and that he only claimed ownership to the property through his mother by virtue of the purchase made from the 4th defendant in the suit, who is the respondent in

E.P. from the mere fact that the revision petitioner made an endorsement that he will attorn the tenancy along with the other real tenants and the prior application was closed it cannot be said that there was a tenancy, that there was attornment and that symbolical delivery was effected. As already stated, the provisions of Order 21, rule 36 C.P.C. has not been complied with in this case. It is seen from the averments made in the very counter that even subsequently he did not accept the respondent as his landlord, but only set up title in favour of his mother and himself. In the

circumstances, 1 find much force in the contention of the learned counsel for the respondent that the alleged symbolical delivery so far as the revision petitioner is concerned cannot be said to be legal, complete and effective delivery. The decision relied on by the learned counsel for the revision petitioner reported in Shew Bux v. Bengal Breweries Ltd 1961 S.C. 137., is not applicable to the facts of this case, as was rightly observed by the learned Subordinate Judge, Devakottai. That was a case where there was a decree for actual possession after removing any person bound by the decree and who refused to vacate the same. The decree holder applied to the executing Court for police help for executing the decree. In the meantime, the judgment debtor obtained stay. But, after the stay was vacated, the Nazir went to the help of police, to execute the decree. But, the decree holder and the judgment debtor entered into an amicable settlement between them and as per the said settlement, the decree holder's men were allowed to remain in the premises as guards. Actual possession of some of the properties was given. The Court also accepted the delivery and the same was recorded. Due to some misunderstandings, the decree holder again filed a fresh application for actual delivery and the said application was dismissed holding that in view of the fact that the decree holder accepted the delivery of possession of the property from the judgment debtor, that the defendant remained in the premises with the permission granted, that he put guards on the premise and that he had also granted a receipt acknowledging full delivery of possession, it is not open to the decree holder to file another application. The facts of the said case are not applicable to the facts of this case as in this case, some third party namely, revision petitioner was not even a tenant, that his mother purchased pendente lite and that the delivery was not effective as he was claiming only independent title. The learned counsel for the respondent drew my attention to a decision of this Court reported in Ramalinga v. K. N. K. Reddi 87 L.W. 63 = AIR 1974 Mad 325. where

Gokulakrishnan J. (as he then was), held

Once possession has been legally delivered, a second application for delivery will not lie, unless there has been no legal, complete and effectual delivery of possession on the earlier occasion. In the latter case, a subsequent application will be maintainable, such an application cannot be called a ''second application. But where only a paper delivery has been made, it cannot be said that the decree has been executed unless the court satisfies itself that actual physical delivery has been effected .A.I.R. 1961 S.C. 137 relied on; 4 All 184 and 1962 Kerala L.T. 764, distinguished,

The learned Judge in that decision relied on the earlier decisions in Mamidi Venkata Satyanarayana Manikyala Rao and Another Vs. Mandela

Narasimhaswami and Others, , Ramaganesan Pillai and Others Vs. Rajah Ayyar and Others, ., and other decision in para 16 of the judgment. It was also pointed out that in Ghanshyum v. Patikchandra A.T.R. 1957 Assam. 123., it was held--

If the fact was that actual delivery of possession was not obtained by the decree holder in the previous execution case, there was no justification for holding that the decree holder be deprived of his right to come before the executing court and pray for a fresh delivery of possession when there was no other bar to his right of executing the decree.

In Rama Sabadhi v. Bhagirathi AIR 1982 Orissa 86., a Division Bench held--

If the decree holder is satisfied with the alleged delivery of possession of immovable property, whether physical or symbolical he cannot on a subsequent date ask for actual possession by filing a second execution petition A prayer for fresh delivery of possession can be entertained only in cases where there was no legal, complete and effective delivery of possession on the earlier occasion. Therefore, since there was no legal,

complete or effective delivery of possession on the earlier occasion it is competent for the decree holder to apply again before the executing court for physical delivery of possession.

In the said case, the learned Judges also relied on the decision of the Supreme Court reported in Shew Bux Mohaia v. Bengal Breweries Ltd AIR

1961 S.C. 137. Mamidi Venkata Satyanarayana Manikyala Rao and Another Vs. Mandela Narasimhaswami and Others, Ramaganesan Pillai and

Others Vs. Rajah Ayyar and Others, , and Ghanshyam Das Mour Agarwala v. Fatik Chandra-das A.T.R. 1957 Assam. 123 . That was also a case where the executing court issued a writ of delivery of possession under Order 21 rule 35 C.P.C. and appointed a Commissioner to demarcate the property at the time of delivery of possession. The process server entrusted with the writ reported that he had delivered physical possession of the property to the decree holder after evicting the judgment debtors therefrom. The Commissioner appointed by the Court also reported that he had demarcated the land at the time of delivery of possession. The decree holder made an endorsement on the back of the writ that he had got actual physical possession. Subsequently, some of the judgment debtors filed a petition in the executing court alleging that delivery of possession was only a paper delivery and not actual physical delivery and that they were still continuing in possession. Thereafter the decree holder filed a petition for fresh delivery of possession. That application was resisted on the ground that symbolical delivery of possession having been given, there could be no further jurisdiction for ordering delivery. It was held by the learned single Judge that the decree holder being entitled to actual physical possession, the symbolical possession was a nullity and accordingly maintained the order of the executing court for fresh delivery of possession. The Division Bench agreed with the learned single Judge and upheld the order of delivery and held that since there was no legal,

complete and effective delivery on the earlier occasion, it is competent for the decree holder to apply again for physical delivery of possession and held that the objection raised by the judgment debtors is devoid of any force. However, the Division Bench allowed the appeal on a different

question.

In Mumtaz Jehan Vs. Insha Allah alias Noor Jehan and Others, it was held-

If a decree holder entitled to actual possession of the property makes an application for symbolical possession and obtains such possession, he is not debarred from obtaining actual possession subsequently. A decree holder who obtained partition decree can execute it by two different modes,

namely, actual possession and symbolical possession. Successive applications for execution can be made. The decree holder is thus entitled to proceed in execution by one mode i.e; by delivery of symbolical possession in the first instance and subsequently by another mode i.e, by delivery

of actual possession.

Where the decree holder in his previous execution application prayed for delivery of possession of the property in occupation of tenants by beat of drums i.e; for symbolical possession, subsequent application by the decree holder for actual possession of the property in possession of the judgment debtor would not be barred. It does not stand to reason that a decree holder should be deprived of actual possession under Order 21

R.35 C.P.C. if he had never previously prayed for obtained 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.

Applying the ratio in the above quoted cases, to the facts of this case, it is seen that there was nothing to show that the revision petitioner herein was a tenant under the defendant previously. On the other hand, he only claimed independent title by virtue of the purchase from the defendant through his mother. Subsequently also he maintained the same. In the circumstances, it cannot be said there was legal, complete and effective delivery of possession on the early occasion .Hence the subsequent application filed for effective delivery of possession on the basis of the decree in his favour cannot be said to be barred. Further, there was nothing to show that the alleged symbolical delivery accepted by the decree holder bas been duly effected by observing the procedure under Order 21, rule 36 C.P.C. For all these reasons, I am of the view, that the order passed by the lower court is perfectly legal and correct and it does not suffer from any infirmity or illegality whatsoever so as to interfere with the same by this Court. It is also to be noted that admittedly the respondent (decree holder) by virtue of the impugned order took actual possession long prior to the filing of the C.R.P. and on that score, the stay application has been dismissed as infructuous. and the proper remedy of the revision petitioner is only to proceed against the defendant who has executed the sale deed during the pendency of the litigation and not to resist the delivery of

possession.

In the result, the revision fails and stands dismissed. However, in the circumstances of the case, there will be no order as to costs.