JUDGMENT
Basil Scott, C.J.
1. In this suit, which was filed on the 3rd of July 1913, the plaintiffs alleged that in execution of a decree in a suit of 1890 their father purchased the plaint property at an auction sale, and a receipt for possession was given by the plaintiffs to the bailiff on the 3rd of July 1901. This suit is for possession; it is filed exactly on the day the twelfth year expires. Both Courts have held that the cultivable land and the house, which are the subject of the suit, were, on the 3rd July 1901, and had for some time previously been, in the possession of the defendants 1 to 3, and that the defendants 1 to 3 were not disturbed in their possession on the date of the receipt, but that statements were made in it both by the plaintiffs and by the bailiff as to possession having been given to the plaintiffs which were entirely false. Order XXI, Rule 95, of the Code provides that ” where the immoveable property sold is in the occupancy of the judgment-debtor or of some person on his behalf…and a certificate in respect thereof has been granted under Rule 94, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.”
2. The form prescribed for the warrant to the bailiff is given in Appendix E, No. 39, and runs as follows:–” Whereas…has become the certified purchaser of…at a sale in execution of decree in suit No…of 19 ; you are hereby ordered to put the said…the certified purchaser, as aforesaid, in possession of the same.”
3. It is clear, therefore, that the provisions of the Civil Procedure Code have not been complied with. It is, however, argued that there has been what is called symbolical possession, and it is contended that the provisions of the Code, as interpreted in Mahadev Sakharam v. Janu Namji Hatle (1912) I.L.R. 36 Bom. 373; 14 Bom, L.R. 115, F.B., may be disregarded in consequence of a decision in the Privy Council in Radha Krishna v. Ram Bahadur (1917) 20 Bom. L.R. 502, P.C. There, according to the judgment of the Judicial Committee, a sale took place, and the mortgagees were the purchasers. They received a sale certificate that they were entitled to all the zemindari rights in eight annas pucca of Mouza Nagdah, and the land being in occupation of cultivating tenants under an apparently bonafide title, they received formal possession as usual after due proclamation by beat of drum in 1898. That was, therefore, a case falling under Section 319 of the Civil Procedure Code of 1882, which provides that ” when the property sold is in the occupancy of a tenant or other person entitled to occupy the same, and a certificate in respect thereof has been granted under Section 316, the Court shall order delivery thereof to be made by affixing a copy of the certificate of sale in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or in such other mode as may be customary, at some convenient place, that the interest of the judgment-debtor has been transferred to the purchaser.”
4. The difficulty supposed to be created by the Privy Council judgment is due to a reference in the concluding paragraph to a Full Bench decision of the Calcutta High Court in Juggobundhu Mukerjee v. Ram Chunder Bysack (1880) I.L.R. 5 Cal. 584, F.B., in which it was said that symbolical possession availed to dispossess the defendants sufficiently, because they were parties to the proceedings in which it was ordered and given, and their Lordships observed that there was no reason to question it or to hold that the rule of procedure should be altered.
5. In the Calcutta case it was said that where land was in the occupation of the defendants delivery must be by placing the plaintiff in direct possession under Section 223 of the Code of 1859, but where it was in the occupation of riots the decree awarding possession to the plaintiff as against the defendant (not in actual occupation) could only be enforced by proclamation and as in contemplation of law both parties must be considered as being present at the time when the delivery is made. The delivery thus given by proclamation must be deemed equivalent to actual possession. This would be so only under Section 224 of the Code of 1859 corresponding with Section 264 of the Code of 1882 and Order XXI, Rule 36, of the present Code or Section 319 and Order XXI, Rule 96, dealing with the case of delivery to a purchaser at a Court-sale of land in occupation of tenants.
6. The present case, however, falls under Section 318 of the Code of 1882 which is re-enacted in Order XXI, Rule 95.
7. We affirm the decree and dismiss the appeal with costs.