Shew Bux Mohata & Ors Vs. Bengal
Breweries Ltd. & Ors  INSC 152 (15 September 1960)
IMAM, SYED JAFFER DAYAL, RAGHUBAR
CITATION: 1961 AIR 137 1961 SCR (1) 680
CITATOR INFO :
R 1982 SC 989 (53)
Execution proceedings-Delivery of Possession
acknowledgedExecution case dismissed-If further execution Proceeding
Permissible-Purchaser of respondent's interest-Whether could be added as
Party-Code of Civil Procedure, 1908 (5 of 1908), 0. 21, r. 35, s. 146.
The appellant decree-holders in an execution
proceeding accepted delivery of possession and granted a receipt to the Nazir
of the Court acknowledging full delivery of possession to them but allowed the
respondents, Bengal Breweries, to remain in possession with their permission.
The appellant also permitted the execution case to be dismissed on the basis
that full possession had been delivered to them by the respondents. Sometime
thereafter the appellant made a fresh application for execution against the
respondent, for eviction which was resisted under s. 47 of the Civil Procedure
Code alleging that so far as they were concerned, the decree had been fully
executed as a result of the earlier execution proceeding which had terminated,
and that further execution was not permissible in law.
Held, that it is open to the decree-holder to
accept delivery of possession under 0. 21, r. 35, of the Code of Civil
Procedure without actual removal of the person in possession. If he does that
then he is bound to the position that the decree has been fully executed, and
it cannot be executed any more.
Held, further, that on the principle in Saila
Bala Dassi v. 681 Nirmala Sundari Dassi whereby the purchaser from the appellant
under a purchase made prior to the appeal was brought on the record of the
appeal, a purchaser from the respondent under a conveyance made prior to the
appeal could be brought on the record of the appeal.
Saila Bala Dassi v. Nirmala Sundari Dassi,
1287, followed, Maharaja Jagadish Nath Roy v.
Nafay Chandra Paramanik, (1930) 35 C.W.N. 12, approved.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 58 of 1958.
Appeal from the Judgment and decree dated April 5, 1955, of the Calcutta High Court in Appeal from Original Order No.
206 of 1953, arising out of the judgment and
order dated May 20, 1953, of the Fourth Additional Sub-Judge, 24 Paris at
Alipore in Misc. Case No. 15 of 1951.
C. K. Daphtary, Solicitor-General of India, C. B. Aggarwala and Sukumar Ghose, for the appellants.
H. N. Sanyal, Additional Solicitor-General of
India and R. C. Datta, for the respondents Nos. 3 and 4.
1960. September 15. The Judgment of the Court
was delivered by SARKAR J.-This appeal arises out of an execution proceeding.
It is filed by the decree-holders and is
directed against the judgment of the High Court at Calcutta setting aside the
order of a learned Subordinate Judge at Alipore dismissing the objection of a
judgment-debtor to the execution. The High Court held that the decree having
earlier been executed in full, the present proceedings for its execution were
incompetent and thereupon dismissed the decree-holders' petition for execution.
The question that arises is whether the decree had earlier been executed in
The facts appear to have been as follows:-One
Sukeshwari Alied sometime prior to 1944 possessed of three plots of land which
at all material times, bore premises Nos. 26, 27 and 28, Dum Dum Cossipore
Road, in the outskirts of Calcutta. She left a will of which defendants Nos. 1,
2 and 6 were the executors.
682 The executors granted leases of these
different plots of land to defendants Nos. 3, 4 and 5 respectively and put them
Certain persons called Mohatas whose
interests are represented by the appellants in the present appeal, claimed that
Sukeshwari had only a life interest in the lands which on her death had vested
in them and the executors had therefore no right to grant the leases. They
filed a suit against the executors and the tenants on September 15, 1954, in
the Court of a Subordinate Judge at Alipore for a decree declaring that the
defendants had no right to possess the lands and for khas possession by
evicting the defendants from the lands by removing the structures, if any, put
up by them there. On March 30, 1948, the learned Subordinate Judge passed a
decree for khas possession in favour of the Mohatas and gave the defendants six
months time to remove the structures put up on the land. It is the execution of
this decree with which the appeal is concerned.
Defendant No. 3 appealed from this decree and
that appeal succeeded for reasons which do Dot appear on the record. It is not
necessary to refer to defendant No. 3 further as we are not concerned in this
appeal with him. It may however be stated that he was in possession of premises
No. 26 and no application for execution appears to have been made against him.
The executor defendants also appealed from
the decree. The other two tenants, defendants Nos. 4 and 5, did not appeal.
Of these tenants we are Concerned only with
defendant No. 4, the Bengal Breweries Ltd., a company carrying on business as
distillers. It was in possession of premises No. 27, on which it had built a
factory for distilling liquor and yeast. Defendant No. 5 was in possession of
premises No. 28 on which stood some temples.
On September 22, 1948, the Mohatas the
decree. holders, filed an application in the Court of the learned Subordinate
Judge for execution of the decree against defendants Nos. 1, 2, 4, 5 & 6.
On September 25, the learned Subordinate Judge passed an order in execution 683
issuing a writ for delivery of possession of premises Nos. 27 and 28 to the
decree-holders by removing, any person bound by the decree who refused to
vacate the same and fixed November 22 for making the return to the writ. On
September 28, the decree-holders applied to the learned Subordinate Judge for
obtaining help from the police for executing the decree. On September 29, the
executor defendants applied for a short stay of execution to enable them to
obtain a stay order from the High Court. Defendant No. 4 also itself made an
application for staying the execution for two months to enable it to come to an
arrangement with the decree holders in the meantime. On the decree-holders
assuring the Court that they would not execute the decree till 2 p. m. of the
next day these two petitions by the judgment-debtors were adjourned till
On September 30, 1948, the two petitions for
stay were taken up for hearing by the learned Subordinate Judge. With regard to
the petition by the executor defendants, he observed that he had no power to
stay execution in view of
0. 41, r. 5, of the Code of Civil Procedure
and thereupon dismissed that petition. The petition for time by defendant No. 4
was also dismissed but in respect of it the following observation appears in
the order: " The decree-holders undertake that they will allow the company
to carry on normal business for six weeks from now by which time the company
will settle matter with the decree-holders ".
Thereafter on the same day the decree-holders
deposited in Court, the necessary costs for police help for executing the
decree and the learned Subordinate Judge requested the police to render the
necessary help on October 1, 1948. It also appears that subsequently on the
same day defendant No.
4 filed another petition for stay of
execution and also a petition under s. 47 of the Code objecting to the
execution, alleging that there was a tentative arrangement between it and the
decree-holders that it would pay Rs. 150 as monthly rent and it need not file
any appeal to challenge the validity of the decree. The decree-holders opposed
these petitions by defendant 684 No. 4. The learned Subordinate Judge made no
order on them but adjourned them to November 11, 1948, as he felt that the
matter required investigation.
On October 1, 1948, the Nazir of the Court
proceeded to premises Nos. 27 and 28 with certain police officers to execute
the decree in terms of the writ. He found the gate of premises No. 27 closed
but later the manager of defendant No. 4 opened it at his request. What
happened thereafter appears from the return of the Nazir which is in the
following words: " We then entered into the factory house and delivered
possession in each of the buildings at about 10-30 a. m. Before removal of the
furniture and other movables from those buildings there was an amicable
settlement between the decree-holders and the manager of the factory that the
factory will run its normal business as before for 6 weeks and in the meantime
the executive body of the factory will make settlement with the decree-holders
and some of the decree-holders' men will remain there as guards ". It is
admitted that the decree-holders' guards were thereafter posted on the premises.
The Nazir then proceeded to premises No. 28
and the return also shows that he delivered possession of these premises to'
the decree-holders, The relevant portion of the return is in these words:
"Then we proceeded towards the premises No. 28 (Old No. 8) Consisting of 2
temples and found that the priest of the temple was present. He amicably came
out of the compound and possession was delivered of the temples, lands, tanks
and other plots mentioned in the writ." After possession had been
delivered, the decree-holders executed on the same day a receipt in
acknowledgment of possession having been received by them. That receipt is in
" Received from Sri Bhabataran Banerjee,
Naib Nazir, District Judge's Court, Alipore, 24-Parganas, delivery of possession
of premises Nos. 7 and 8 (formerly Nos. 27 and 28) Dum Dum Cossipore Road in
the above execution case, this day at 10-30 a.m. including all buildings,
tanks, gardens and temples, etc., all these mentioned in the writ in its
schedule." 685 The receipt by mistake describes the premises as "
formerly " Nos. 27 and 28 for the premises then bore these numbers.
It appears that at 11-15 a. m. on October 1,
1948, the executor defendants moved the High Court) for a stay of execution in
the appeal filed by them from the decree. The High Court directed an ad interim
stay. After this order had been made the executor defendants moved the learned
Subordinate Judge on the same day for consequential orders on the strength of
the stay of execution granted by the High Court. The learned Subordinate Judge
thereupon made the following order : " In the special circumstances recall
the writ provisionally. To 5th November, 1948, for, fresh consideration if
formal stay order is not received in the meantime ". This order was passed
on the verbal representation of the lawyers for the executor defendants that
the High Court had directed the stay of execution for there had not been time
for the High Court's order to be formally drawn up and produced before the
learned Subordinate Judge.
On November 22, 1948, which was the day fixed
for making the return to the execution of the writ, the following order appears
to have been passed by the learned Subordinate Judge in the execution case:
" Possession delivered. One third party has filed an application under Or.
21, r. 100, C.P.C. Let the execution case be put up after the disposal of Misc.
Case No. 13 of 1948." The Miscellaneous Case No. 13 of 1948 was the one
started on the petition of the third party under Or. 21, r. 100 of the Code, objecting
to his removal by the execution. This third party was one Bhairab Tewari and he
presumably was claiming some right in premises No. 28 for there was no question
of his making any claim to premises No. 27 which were exclusively in the
possession of defendant No. 4.
The ad interim stay issued by the High Court
on October 1, 1948, in the appeal filed by the executor defendants, came up for
final hearing and resulted in the following order on January 21, 1949.
"If anything is due on account, of costs
which 686 has not been paid, that amount will be deposited in the Court below
by defendant No. 4 (i.e., Mr, Sen's client) within a month from to day, and
then three month's time from to-day will be given to him to remove the
machineries and vacate that portion of the land in suit which he is occupying
as a lessee and which he is using now as a brewery. In default of the deposit
being made and also in default of vacating the premises as directed above, this
Rule will stand discharged.
We do not stay delivery of possession in
respect of any other item in which defendant No. 4 or No. 1, or any other
defendant save and except defendant No. 3 is interested." The appearances
of the parties recorded in this order do not show any appearance having been
made in connection with it by defendant No. 4. It does not appear from the
records what other proceedings, if any, were taken in the appeal by the
executor defendants but it is agreed that appeal was dismissed on September 8,
Defendant No. 4 did not vacate at the end of
the three months mentioned in the order of January 21, 1949. The parties then
took proceedings in Criminal Courts under s. 144 of the Code of Criminal
Procedure and other connected provisions. It is not necessary to refer to these
proceedings and it is enough to state that they did not affect the possession
of premises No. 27 by defendant No. 4, who continued in possession till the
United Bank of India Ltd. took over possession as hereinafter stated.
On September 8, 1949, the following order was
made by the learned Subordinate Judge in the execution case:
" Decree-holder takes no other steps.
Possession so far as regards the Bengal Breweries are concerned, delivered.
Ordered that the execution case be dismissed
on part satisfaction." On September 27, 1951, the decree-holders made a
687 fresh application for execution against defendant No. 4 alone by evicting
it from premises No. 27. Defendant No. 4 put in an objection against the
execution under s. 47 of the Code alleging that so far as it was concerned, the
decree had been fully executed as a result of the earlier execution proceedings
which terminated by the order of September 8, 1949, and that further execution
was not permissible in law. It is out of this objection that the present appeal
has arisen and the question for decision is whether the objection to the
execution so raised, is sound.
As earlier stated, the learned Subordinate
Judge dismissed the objection to the execution but on appeal the High Court set
aside his order and dismissed the petition for execution. The High Court
granted a certificate for an appeal to this Court on June 15, 1956 and on
August 3, 1956, the High Court passed an order directing that the appeal be
On August 11, 1960, an order was made by this
Court adding three persons named Mool Chand Sethia, Tola Ram Sethia and Hulas
Chand Bothra as parties respondents to this appeal.
The order however provided that the
appellants decreeholders would have a right to object to the locus standi of
these persons in the appeal. At the hearing before us only these added parties
appeared to contest the appeal The appellants have raised a preliminary
objection that the added parties have no locus standi and cannot be heard in
It appears that defendant No. 4 had executed
three successive mortgages of premises No. 27 with all structures and
appurtenances, to a bank called the Coming Banking Corporation Ltd. The first
of these mortgages had been executed on May 25, 1944, and the other two
mortgages had been executed after the suit in ejectment had been filed but
before that suit had been decreed. The assets of the Coming Banking Corporation
Ltd. became subsequently vested in the United Bank Limited. Sometime in 1953,
the United Bank filed a suit for enforcement of the mortgages. On May 30, 1955,
a final mortgage decree was passed 88 688 in favour of the United Bank. On July
20, 1956, the mortgaged properties were put up to auction and purchased by the
United Bank. On March 1, 1958, the mortgage sale was confirmed and subsequently
the United Bank was put in possession of premises No. 27. On July 13,1960, the
United Bank Conveyed premises No. 27 along with all structures and
appurtenances and all its right, title and interest therein to these added
respondents. It is by virtue of this conveyance that the added respondents
obtained the order from this Court dated August 11, 1960, making them parties
to the appeal. Defendant No. 4, the Bengal Breweries Ltd., is now in
liquidation and it has not entered appearance to this appeal nor taken any
steps to defend it.
It appears to us that the added respondents
were properly brought on' record. The decision of this Court in Saila Bala
Dassi v. Nirmala Sundari Dassi (1), supports that view.
There it was held that an appeal is a
proceeding within the meaning of s. 146 of the Code and the right to file an
appeal carried with it the right to continue an appeal which had been filed by
the person under whom the appellant claimed and on this basis a purchaser from
the appellant under a purchase made prior to the appeal was' brought on the
record of the appeal. We think that on the same principle the added respondents
in the case before us were properly brought on the record.
It is not in dispute that if the decree was
once executed against defendant No. 4 in full, then it cannot be executed over
again regarding premises No. 27. In other words, if possession had been fully
delivered to the decree-holders in. execution of the decree on October 1, 1948,
the decree must have been wholly satisfied and nothing remains of it for
enforcement by further execution. The decree was for khas possession and under
Or. 21, r. 35, of this Code in execution of it possession of the property
concerned had to be delivered to the decree-holders, if necessary, by removing
any person bound by the decree who refused to vacate the property. The records
of the proceedings (1)  S.C.R. 1287.
689 show that such possession was delivered.
Defendant No. 4 was the party in possession and bound by the decree. With
regard to defendant No. 4, the order made on September 8, 1949, states, "
Possession so far as regards the Bengal Breweries are concerned,
delivered." This is an order binding on the decree-holders. It has not
been said that this order was wrong nor any attempt made at any time to have it
set aside or to challenge its correctness in any manner. The same is the
position with regard to the order of November 22, 1948, recording on the
Nazir's return that possession had been delivered in terms of the writ.
The order of September 9, 1949, no doubt
further' states, " Ordered that the execution case be dismissed on part
satisfaction ". The words " part satisfaction " in this order,
however clearly do not refer to part satisfaction as against defendant No. 4,
the Bengal Breweries, for the order expressly states, " possession so far
as regards the Bengal Breweries are concerned, delivered." The decree had
therefore been satisfied in full as against the Bengal Breweries Ltd. and
consequently as regards premises No. 27 in its possession. Even the learned
Subordinate Judge who held the execution maintainable found that " the decree
holders had no doubt previously got possession ". Notwithstanding this,
the learned Subordinate Judge decided that the decree could still be executed
as he took the view that at the hearing before the High Court on January 21,
1949, defendant No. 4 " must have ignored the delivery of possession by
the Naib Nazir and he cannot now be heard to say that the delivery of
possession by the Naib Nazir was legal and valid ". For reasons to be
stated later, we are unable to agree with this view.
It is true that the Nazir's return showed
that defendant No. 4 had not been bodily removed. But the same return also
shows that it had not been so removed because of certain arrangement arrived at
between it and the decree-holders and as the decree-holders had not required
the removal of defendant No. 4 from the premises. Now under Or. 21, r. 35 a
person in possession and bound by the decree has to be removed 690 only if
necessary, that is to say, if necessary to give the decree-holder the
possession he is entitled to and asks for.
It would not be necessary to remove the
person in possession if the decree-holder does not want such removal. It is
open to the' decree-holder to accept delivery of possession under that rule
without actual removal of the person in possession. If he does that, then lie
cannot later say that he has not been given that possession to which he was
entitled under the law. This is what happened in this case.
The decree-holders in the present case, of
their own accepted delivery of possession with defendant No. 4 remaining on the
premises with their permission. They granted a receipt acknowledging full
delivery of possession. They permitted the execution case to be dismissed on
September 8, 1949, on the basis that full possession had been delivered to them
by defendant No. 4. The fact that they put their guards on the premises as
mentioned in the Nazir's return would also show that they had obtained full
possession. It was open to the decree-holders to accept such possession. Having
once done so, they are bound to the position that the decree has been fully
executed, from which it follows that it cannot be executed any more. In the
case of Maharaja Jagadish Nath Roy v. Nafar Chandra Parmanik (1) an exactly
similar thing bad happened and it was held that the decree was not capable of
further execution. It was there said at p. 15, " The case, therefore,
seems to me to be one of those cases in which a decree-holder having armed
himself with a decree for khas possession executes that decree in the first
instance by obtaining symbolical possession only with some ulterior object of
his own, and thereafter subsequently and as a second instalment asks for khas
possession. The question is whether such a course is permissible under the law.
I am of opinion that it is not ".
We entirely agree with the view that was
The learned Solicitor-General appearing for
the appellants contended that the order of September 30, (1) (1930) 35 C.W.N.
691 1948, shows that the decree-holders bad
undertaken to allow defendant No. 4 to carry on normal business for six weeks
and therefore, on October 1, 1948, when they proceeded to execute the decree,
they were not seeking to execute it in full by removing defendant No. 4 from
possession. He said that the execution on October 1, 1948, was therefore not
complete as defendant No. 4 had not been removed pursuant to the undertaking
given on September 29, 1948. We are unable to read the order made on September
8, 1949, or the Nazir's return and the receipt granted by the decree-holders in
a manner contrary to the plain meaning of the words used in them, because of
the undertaking. Further, it is not the case of the decree-holders that order,
the Nazir's return or the receipt is incorrect or had come into existence
through any misapprehension. The legality or correctness of none of these was
ever nor is now challenged. The order of September 8, 1949, is binding on the
decree-holders and they cannot now go behind its terms. For the same reason,
neither can they go behind the order of November 22, 1948, recording in terms
of the Nazir's return that possession had been delivered.
It further seems to us that if the
undertaking meant that defendant No. 4, was not to be removed from possession,
then the execution would have been stayed, which it was not, for the only way
in which it was possible to execute the decree was by removal of defendant No.
4 from possession as it was alone in actual possession, the executor defendants
claiming only rent from it as landlord. Then again the order in which the
undertaking appears, also states that the stay of execution against defendant
No. 4 as asked by it, was refused. Besides this, the order sheet shows that
immediately after the order stating the undertaking had been made another order
was made on the same day acknowledging receipt from the decree-holders of the
costs of the police for helping the execution and directing that the police
might be approached to render any help necessary on October 1, 1948, at the
time of the execution of the decree. The only possible way to reconcile all the
various orders, the return 692 and the receipt, is to proceed on the basis that
by the undertaking the decree-holders agreed that after they had taken
possession, they would allow defendant No. 4 to continue its business on the
premises for six weeks with their permission. Such undertaking does not show
that it was not intended to remove defendant No. 4 from possession.
The learned Solicitor-General also contended
that the fact that the undertaking was confined only to a period of six wee s
would show that the decree-holders were not permitting defendant No. 4 to
continue in possession after they had obtained possession from it, for then no
period would have been mentioned. We are unable to accept this argument for
there is nothing to prevent the decree-holders after they had obtained
possession under the decree, to grant permission to defendant No. 4 to continue
in possession for any period them. liked; such permission could be for six
weeks or for any longer or shorter period as the decree holders thought fit.
The learned Solicitor-General then contended
that the case was one where the decree had been partly executed on one day and
execution had been stopped on that day for want of time or other reason, with
the object of continuing it on a subsequent day. In such a case, he said, there
would be nothing to prevent subsequent execution of the same decree.
It does not seem to us that the present case
is of this nature. The orders and documents on the record are against this
view. The further execution is not in the course of the earlier execution but
is a fresh execution. The interruption in the execution was for over two years.
Apart from other things, the placing of their own guards on the premises by the
decree-holders could only be on the basis that they had taken possession. The
learned SolicitorGeneral said that the guards had been put there with the
permission of defendant No. 4. The Nazir's return is entirely against such a
view. Indeed, it is difficult to see why defendant No. 4 would permit the
decree-holders' guards on the premises unless it was on the basis that
possession had been taken by the decree-holders and the guards 693 were there
to protect their possession. The guards were subsequently removed but it does
not appear, from the records. in what circumstances they were' removed.
Nor do we think that the order of October 1,
1948, assists the decree-holders. That order directed the writ to be recalled
provisionally. The order was wholly infructuous for the writ had earlier been
duly executed. The learned Subordinate Judge himself came to that finding. This
as we have said, is also clear from the records of the execution case. The writ
could not be recalled after it had been 'executed fully. Nor does the order
establish that the decree had been executed in part only. The writ was not in
fact recalled before the decree had been executed in full.
The order of September 8, 1949, makes it
impossible to hold that the writ was recalled after it had been executed in
The other argument advanced by the learned
Solicitor-General was based on the order of the High Court dated January 21,
1949. It was said that order indicated that the decree had not been executed by
removing defendant No. 4 from possession because it, in substance, was an order
for a stay of execution of the decree. It was also said that the order must have
been on the basis of a representation by defendant No. 4 and a finding that the
decree had not been executed by removing defendant No. 4 from possession. The
contention was that finding and representation was binding on defendant No. 4
and therefore on the added respondents and further that having obtained the
order on the basis that it had not been ousted from possession in execution,
defendant No. 4 and hence the added respondents, could not be permitted to
approbate and reprobate that position and now be heard to say that the decree
had been executed in full.
We think that both these contentions are
ill-founded. The order is far from clear. We have already pointed out that
there is nothing in it to show that defendant No. 4 had asked for any stay. Defendant
No. 4 had not appealed from the decree. It was not 694 entitled to a stay of
the execution of the decree. It was in possession of the premises with the
permission of the decree-holders. The permission had initially been for six
weeks which period had expire was executor defendants who had obtained an ad
interim stay from the High Court on October 1, 1948. This order was infructuous
because forty-five minutes prior to the time that it was made, the decree had
been executed in full. In those circumstances the Court on January 21, 1949,
may be at the request of defendant No. 4, gave it three months' time to vacate
the premises. The request, if any, by defendant No. 4 does not involve a
representation that the decree had not been executed in full. It may, at most,
mean that the six weeks' permission initially granted by the decree holders
might be further extended. With regard. to the other contention, namely, that
the order of January 21, 1949, amounted to a finding that the decree had not
been executed in full, we have to point out that no such finding appears on the
face of it.
The order was made on an interlocutory
proceeding and was only in aid of the final decision in the appeal. The
proceeding in which the order was made did not involve a decision of the issue
whether the decree had earlier been executed in full. No finding on such an
issue can therefore be implied in the order. This order does not in our view in
any way prevent the added respondents from contending that the decree had been
executed in full.
In the result this appeal fails and it is
dismissed. We do not think it fit to make any order as to costs.