JUDGMENT
Macpherson, J.
1. No evidence has been recorded in this case, and the only question we are called upon to decide is, whether the plaint discloses a cause of action on which the suit can be maintained. The Subordinate Judge held that it did not do so. The Additional Judge took a different view and remanded the case for trial on the merits. The appeal is against the order of remand.
2. The allegations in the plaint are to the effect that the plaintiff after foreclosure obtained a decree against the defendant for possession of properties mortgaged by him, including a house standing on two biggahs of land, and other lands, some of which were, it is now stated, in the occupation of tenants; that the plaintiff executed this decree, and on the 12th July 1879 obtained possession of all the properties with the aid of the Court; but that the defendant without entering into any settlement continued to hold possession of two biggahs of land and the buildings thereon, although he had been served with a notice to quit in June 1881. The suit is accordingly brought to recover possession of the two biggahs of land and of the buildings, and the cause of action is said to have arisen on the 6th August 1881, when the term of notice expired. The defendant in his answer took various pleas; he denied that the property claimed was covered by the mortgage deed; and he pleaded that, after a series of compromises subsequent to the decree, the mortgage debt had been fully liquidated. The only pleas with which we are now concerned are those relating to the absence of a cause of action, and to the jurisdiction of the Court to entertain the suit.
3. It is to be regretted that the first Court did not, before dismissing the suit, determine in what particular way the plaintiff obtained possession, and what he meant by saying that the defendant “without entering into any settlement continued to hold possession,” as this might mean that some settlement was contemplated by the parties, but was not carried into effect.
4. Both sides have argued before us on the understanding that formal, though not actual, possession was given by the Court; that is to say, possession in the way referred to in Section 284. The defendant’s denial that any possession was obtained in execution is explained to mean that there was no transfer of possession, and this is of course true from his point of view, as his actual possession was never disturbed, and he denies that the property was at all affected by the decree.
5. The question, therefore, is whether a person entitled under a decree to actual physical possession of property can, after obtaining merely formal possession, bring a suit to oust the defendant, or, whether he must complete his possession by proceedings in execution of his decree. In other words, does the delivery of such formal possession give him a cause of action for a fresh suit. There has been a good deal of controversy and some conflict of decisions as to the effect of a formal delivery of possession under Section 264. It has now, however, been decided by a Full Bench of this Court, in the case of Juggobundhu Mukerjee v. Ram Chunder Bysack I.L.R. 5 Cal. 584 that possession given under Section 224 of the old Code (corresponding to Section 264 of the present one) is, as against the defendant, equivalent to actual possession and gives a fresh starting point for limitation. This overruled the case of Pearee Mohun Poddar v. Juggobundhu Sen 24 W.R. 418 in which it was held that a formal delivery of possession under Section 224, unaccompanied by any subsequent actual possession, did not give rise to a fresh cause of action. The Full Bench case is not precisely in point, as the plaintiff in that case was only entitled to the kind of possession which could be obtained under Section 224, the land being in the occupation of tenants.
6. If, however, the delivery of possession in the manner described in Section 264 does, in the eye of the law, place the plaintiff in possession as against the defendant, I do not see how any less effect can be given to it simply because the defendant was not at the time ejected. If the defendant afterwards refuses to quit, he remains as a trespasser at his own risk and has only himself to blame if he is subjected to the harassment of a fresh suit.
7. But there is distinct authority for holding that the same principle will apply in the case of a person who, being entitled to actual possession under Section 263, takes only formal possession.
8. In the case of Umbicka Chum Goopta v. Madhub Ghosal I.L.R. 4 Cal. 870 the plaintiff obtained a decree for possession by the ejectment of the defendant, but in 1866 took only formal possession through the Court. In 1872 her assignee sued to eject the defendant, and Birch and Mitter, JJ., held that the formal possession given by the Court was sufficient to give a fresh cause of action, notwithstanding that actual possession was never obtained. Similarly in Lokessur Koer v. Purgun Roy I.L.R. 7 Cal. 418 the plaintiff had a decree for khas possession, bub took only formal possession by proclamation and beat of drum, and then brought a suit against the defendant within the period of twelve years for possession. Garth, C.J., and McDonell, J., held that the formal possession given by the Court operated in point of law and fact as a complete transfer of actual possession from one party to the other. It is true that the question in issue in these cases, and in the Full Bench case, was one of limitation; but, to decide this, the Court had to determine when the cause of action arose, and it held that the plaintiff could sue within twelve years from the time of delivery of formal possession.
9. If, therefore, the delivery of formal possession, although the defendants continued in actual possession, effected a complete transfer of the property and furnished, in the cases referred to, a good foundation for a fresh suit, the same result must, I think, follow in the present one. The execution proceedings end with the delivery of possession, and there being a fresh cause of action, there is no bar to the jurisdiction of the Court.
10. The appellant’s pleader relies on the cases of Mahomed Wali v. Noor Buksh 25 W.R. 127; Kristo Gobind Kur v. Gunga Pershad Surmah 25 W.R. 372 and Lolit Coomar Bose v. Ishan Chunder Chuckerbutty 10 C.L.R. 258. Birch and Mitter, JJ. refused, in the case already cited, to follow the decision in Mahomed Wali v. Noor Buksh. The correctness of the decision in Kristo Gobind Kur v. Gunga Pershad Surmah was doubted in the case of Lolit Coomar Bose v. Ishan Chunder Chuckerbutty and the principle on which it proceeded has not been followed in subsequent cases. I think the decision of the Judge is correct, and that the appeal must be dismissed with costs.
Beverley, J.
11. I must confess that I have had considerable doubt in this case; but on the whole I am inclined to agree with my learned brother that, although there is some conflict of authority in the matter, we are bound to follow the later decisions of this Court.
12. The question before us is simply this,–whether a person who has obtained a decree for immoveable property in the occupancy of the judgment-debtor, and who in execution of that decree has taken mere formal possession of such property, is entitled to bring a fresh suit to compel the same judgment-debtor to deliver up the actual physical possession of the property.
13. Sections 263 and 264 of the Code prescribe the mode in which decrees for immoveable property shall be executed.
14. Section 263 refers to cases when the property is in the occupancy of a person bound by the decree, and it provides that ” possession shall be delivered over to the party to whom it has been adjudged, or to such person as he appoints to receive delivery on his behalf, and, if need be, by removing any person bound by the decree who refuses to vacate the property.”
15. Section 264, on the other hand, refers to cases when the property is “in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy,” in which cases a formal possession is to be given by publication of the Court’s order in the manner laid down.
16. This distinction was fully recognized in the Full Bench decision in Juggobundhu Mukerjee v. Ram Chunder Bysack I.L.R. 5 Cal. 584 and that decision only applies to cases falling under Section 264, that is, to cases in which the property decreed is not in the occupancy of the judgment-debtor.
17. When the property is in the occupation of the judgment-debtor, Section 263 gives the Court the power, if need be, to remove him; and the question is, whether, if the decree-holder does not choose to put in motion this power of the Court, but contents himself with a mere formal order declaring his possession, but giving him no actual possession at all, he is at liberty to commence the whole proceedings de novo, and to bring a fresh suit and obtain a fresh decree.
18. It is contended that such a fresh suit is barred both by the provisions of Section 244 of the Code, and also by Section 18. Section 244 says that all questions arising between the parties to a suit in which a decree has been passed, and relating to the execution of the decree, shall be determined by order of the Court executing the decree, and not by separate suit. It is contended that the Court having power under Section 263 to oust the judgment-debtor and put the decree-holder in actual possession of the property, a separate suit for such direct occupation is prohibited by this section.
19. And it is also contended that the matter is res judicata under Section 13 of the Code, on the ground that no fresh cause of action arises from the mere refusal of the judgment-debtor to deliver quiet possession, and the omission on the part of the decree-holder to enforce his decree in accordance with the provisions of Section 263.
20. In support of these contentions we are referred to the cases of Mahomed Wali v. Noor Buksh 25 W.R. 127; Kristo Gobind Kur v. Gunga Pershad Surmah 25 W.R. 372; Lolit Coomar Bose v. Ishan Chunder Chuckerbutty 10 C.L.R. 258.
21. The case of Mahomed Wali v. Noor Buksk 25 W.R. 127 appears to be on all fours with the present. In that case it was held, to use the language of Mitter, J. in Umbicka Churn Goopta v. Madhub Ghosal I.L.R. 4 Cal. 870 “that unless possession (which the report shows to mean substantial possession) is obtained in execution of a decree for possession of land, the decree-holder cannot maintain a second suit for possession against the same defendants, alleging a fresh disturbance of his possession.”
22. The case of Kristo Gobind Kur v. Kishen Persad Surmah 25 W.R. 372 went further, and decided that even an auction-purchaser was confined to the remedies prescribed by the Code Section 318, 319, and that if he failed to obtain possession under those sections, he could not bring a fresh suit.
23. This decision was followed in Lolit Coomar Bose v. Ishan Chunder Chuckerbutty 10 C.L.R. 258 but its correctness was doubted; and it has since been held Seru Mohun Bania v. Bhagoban Din Pandy I.L.R. 9 Cal. 602 that an auction-purchaser is not confined to the remedies provided by Sections 318, 319, but that he may sue without proceeding under those sections at all, or if the possession be obtained under them prove to be infructuous. It may be said, therefore, that the case of Kristo Gobind Kur v. Kishen Persad Surmah 25 W.R. 372 has been overruled as regards an auction-purchaser. The case of an auction-purchaser, however, is not exactly the same as that of a decree-holder. An auction-purchaser would obviously not be barred from suing either by Section 244 or by Section 13 of the Code.
24. On the other hand, the cases of Umbicka Churn Goopta v. Madhub Ghosal I.L.R. 4 Cal. 870; Lokessur Koer v. Purgun Roy I.L.R. 7 Cal. 418 relate to a decree-holder, and are relied on as authority that a fresh suit will lie.
25. In the first case a tenure was sold for arrears of rent and purchased by the decree-holder in 1864; in 1865 the decree-holder sued to eject the tenants, and having obtained a decree she took formal possession in 1866. She then gave a lease of the tenure to the plaintiff, who in 1877 sued to oust the old tenants, and it was held that the formal possession obtained in 1866 was sufficient to bar limitation. It is true that the question raised in that case was one of limitation only, and that the precise point that arises in the present case was not directly decided. The plaintiff in that suit was not the decree-holder in the former suit, and the suit could not, therefore, have been barred under Section 13 or Section 244 of the Code. But I think it must be taken to have been virtually decided, that the formal possession taken in 1866 gave not only a fresh starting point as regards limitation, but also a fresh cause of action in respect of which the plaintiff was enabled to sue.
26. In Lokessur Koer v. Purgun Roy I.L.R. 7 Cal. 418 the facts were very similar to those in the present case, but in that case also the precise point now before us was not directly taken, the only question raised and decided being, whether the delivery of formal possession was a sufficient answer to a plea of adverse possession for more than 12 years. The remarks made in that case, however, support the view that a fresh cause of action arises at the time the decree-holder is put into possession, and that the form in which possession is given is really immaterial. In the majority of cases no doubt the formal delivery of possession by the officer of the Court would be sufficient. It is only in case of actual resistance probably that the officer would feel justified in forcibly ejecting the tenant.
27. But if the judgment-debtor remain in occupancy after formal delivery of possession, he thereby becomes a trespasser no less than if he were to vacate at the time and return the day after. And having thus become a trespasser, a fresh cause of action arises to the decree-holder who may thereupon sue for ejectment. The judgment-debtor has no ground for complaint in being thus twice sued; he is bound to obey the decree, and if he continues in possession after execution, he does so at his own risk. For these reasons I concur in dismissing the appeal.
