{"id":80715,"date":"1960-09-15T00:00:00","date_gmt":"1960-09-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shew-bux-mohata-and-others-vs-bengal-breweries-ltd-and-others-on-15-september-1960"},"modified":"2018-03-13T15:29:47","modified_gmt":"2018-03-13T09:59:47","slug":"shew-bux-mohata-and-others-vs-bengal-breweries-ltd-and-others-on-15-september-1960","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shew-bux-mohata-and-others-vs-bengal-breweries-ltd-and-others-on-15-september-1960","title":{"rendered":"Shew Bux Mohata And Others vs Bengal Breweries Ltd. And Others on 15 September, 1960"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shew Bux Mohata And Others vs Bengal Breweries Ltd. And Others on 15 September, 1960<\/div>\n
Equivalent citations: 1961 AIR 137, \t\t 1961 SCR (1) 680<\/div>\n
Author: A Sarkar<\/div>\n
Bench: Sarkar, A.K.<\/div>\n
           PETITIONER:\nSHEW BUX MOHATA AND OTHERS\n\n\tVs.\n\nRESPONDENT:\nBENGAL BREWERIES LTD.  AND OTHERS\n\nDATE OF JUDGMENT:\n15\/09\/1960\n\nBENCH:\nSARKAR, A.K.\nBENCH:\nSARKAR, A.K.\nIMAM, SYED JAFFER\nDAYAL, RAGHUBAR\n\nCITATION:\n 1961 AIR  137\t\t  1961 SCR  (1) 680\n CITATOR INFO :\n R\t    1982 SC 989\t (53)\n\n\nACT:\nExecution  proceedings-Delivery of Possession  acknowledged-\nExecution  case\t dismissed-If further  execution  Proceeding\nPermissible-Purchaser of respondent's interest-Whether could\nbe added as Party-Code of Civil Procedure, 1908 (5 of 1908),\n0. 21, r. 35, s. 146.\n\n\n\nHEADNOTE:\nThe  appellant\tdecree-holders in  an  execution  proceeding\naccepted delivery of possession and granted a receipt to the\nNazir of the Court acknowledging full delivery of possession\nto  them but allowed the respondents, Bengal  Breweries,  to\nremain\tin possession with their permission.  The  appellant\nalso  permitted\t the execution case to be dismissed  on\t the\nbasis that full possession had been delivered to them by the\nrespondents.  Sometime thereafter the appellant made a fresh\napplication  for  execution  against  the  respondent,\t for\neviction  which\t was  resisted\tunder s.  47  of  the  Civil\nProcedure Code alleging that so far as they were  concerned,\nthe  decree  had  been fully executed as  a  result  of\t the\nearlier execution proceeding which had terminated, and\tthat\nfurther execution was not permissible in law.\nHeld,  that  it\t is  open to  the  decree-holder  to  accept\ndelivery  of possession under 0. 21, r. 35, of the  Code  of\nCivil  Procedure  without actual removal of  the  person  in\npossession.   If  he  does  that then he  is  bound  to\t the\nposition  that\tthe decree has been fully executed,  and  it\ncannot be executed any more.\nHeld, further, that on the principle in Saila Bala Dassi v.\n\t\t\t    681\nNirmala Sundari Dassi whereby the purchaser from the  appel-\nlant  under a purchase made prior to the appeal was  brought\non the record of the appeal, a purchaser from the respondent\nunder a conveyance made prior to the appeal could be brought\non the record of the appeal.\nSaila  Bala  Dassi v. Nirmala Sundari Dassi,<\/a>  [1958]  S.C.R.\n1287, followed,\nMaharaja  Jagadish  Nath  Roy v.  Nafay\t Chandra  Paramanik,\n(1930) 35 C.W.N. 12, approved.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 58 of 1958.
\nAppeal from the Judgment and decree dated April 5, 1955,  of
\nthe  Calcutta High Court in Appeal from Original  Order\t No.
\n206 of 1953, arising out of the judgment and order dated May
\n20,  1953, of the Fourth Additional Sub-Judge, 24  Paris  at
\nAlipore in Misc.  Case No. 15 of 1951.\n<\/p>\n
C.   K.\t  Daphtary,  Solicitor-General\tof  India,   C.\t  B.
\nAggarwala and Sukumar Ghose, for the appellants.
\nH.   N. Sanyal, Additional Solicitor-General of India and R.
\nC. Datta, for the respondents Nos. 3 and 4.\n<\/p>\n
1960.\tSeptember  15.\t The  Judgment\tof  the\t Court\t was
\ndelivered by
\nSARKAR J.-This appeal arises out of an execution proceeding.
\nIt  is filed by the decree-holders and is  directed  against
\nthe judgment of the High Court at Calcutta setting aside the
\norder  of a learned Subordinate Judge at Alipore  dismissing
\nthe  objection of a judgment-debtor to the  execution.\t The
\nHigh Court held that the decree having earlier been executed
\nin  full,  the present proceedings for\tits  execution\twere
\nincompetent  and  thereupon  dismissed\tthe  decree-holders’
\npetition for execution.\t The question that arises is whether
\nthe decree had earlier been executed in full.
\nThe  facts  appear to have been as  follows:-One  Sukeshwari
\nAlied  sometime\t prior to 1944 possessed of three  plots  of
\nland which at all material times, bore premises Nos. 26,  27
\nand  28,  Dum  Dum  Cossipore  Road,  in  the  outskirts  of
\nCalcutta.  She left a will of which defendants Nos. 1, 2 and
\n6 were the executors.\n<\/p>\n
682<\/span><\/p>\n
The  executors\tgranted leases of these different  plots  of
\nland to defendants Nos. 3, 4 and 5 respectively and put them
\nin possession.\n<\/p>\n
Certain\t  persons   called  Mohatas  whose   interests\t are
\nrepresented by the appellants in the present appeal, claimed
\nthat Sukeshwari had only a life interest in the lands  which
\non  her\t death\thad vested in them  and\t the  executors\t had
\ntherefore  no right to grant the leases.  They filed a\tsuit
\nagainst the executors and the tenants on September 15, 1954,
\nin the Court of a Subordinate Judge at Alipore for a  decree
\ndeclaring  that the defendants had no right to\tpossess\t the
\nlands  and  for khas possession by evicting  the  defendants
\nfrom the lands by removing the structures, if any, put up by
\nthem  there.   On March 30, 1948,  the\tlearned\t Subordinate
\nJudge  passed a decree for khas possession in favour of\t the
\nMohatas\t and gave the defendants six months time  to  remove
\nthe  structures put up on the land.  It is the execution  of
\nthis decree with which the appeal is concerned.
\nDefendant  No. 3 appealed from this decree and\tthat  appeal
\nsucceeded for reasons which do Dot appear on the record.  It
\nis  not necessary to refer to defendant No. 3 further as  we
\nare  not concerned in this appeal with him.  It may  however
\nbe  stated that he was in possession of premises No. 26\t and
\nno  application\t for  execution appears to  have  been\tmade
\nagainst him.\n<\/p>\n
The executor defendants also appealed from the decree.\t The
\nother two tenants, defendants Nos. 4 and 5, did not  appeal.
\nOf these tenants we are Concerned only with defendant No. 4,
\nthe Bengal Breweries Ltd., a company carrying on business as
\ndistillers.   It  was in possession of premises No.  27,  on
\nwhich  it  had\tbuilt a factory for  distilling\t liquor\t and
\nyeast.\tDefendant No. 5 was in possession of premises No. 28
\non which stood some temples.\n<\/p>\n
On  September  22, 1948, the Mohatas  the  decree.  holders,
\nfiled an application in the Court of the learned Subordinate
\nJudge for execution of the decree against defendants Nos. 1,
\n2, 4, 5 & 6. On September 25, the learned Subordinate  Judge
\npassed an order in execution
\n\t\t\t    683<\/span>
\nissuing\t a writ for delivery of possession of premises\tNos.
\n27  and\t 28 to the decree-holders by  removing,\t any  person
\nbound by the decree who refused to vacate the same and fixed
\nNovember 22 for making the return to the writ.\tOn September
\n28,  the decree-holders applied to the\tlearned\t Subordinate
\nJudge  for obtaining help from the police for executing\t the
\ndecree.\t  On September 29, the executor\t defendants  applied
\nfor  a\tshort stay of execution to enable them to  obtain  a
\nstay order from the High Court.\t Defendant No. 4 also itself
\nmade an application for staying the execution for two months
\nto  enable  it to come to an arrangement  with\tthe  decree-
\nholders in the meantime.  On the decree-holders assuring the
\nCourt that they would not execute the decree till 2 p. m. of
\nthe  next  day these two petitions by  the  judgment-debtors
\nwere adjourned till September 30.\n<\/p>\n
On September 30, 1948, the two petitions for stay were taken
\nup  for\t hearing  by the learned  Subordinate  Judge.\tWith
\nregard\tto  the\t petition by  the  executor  defendants,  he
\nobserved  that he had no power to stay execution in view  of\n<\/p>\n
0.  41, r. 5, of the Code of Civil Procedure  and  thereupon
\ndismissed that petition.  The petition for time by defendant
\nNo. 4 was also dismissed but in respect of it the  following
\nobservation  appears  in  the order:  ”\t The  decree-holders
\nundertake  that\t they  will allow the company  to  carry  on
\nnormal\tbusiness  for six weeks from now by which  time\t the
\ncompany\t will  settle  matter  with  the  decree-holders  “.
\nThereafter  on the same day the decree-holders deposited  in
\nCourt, the necessary costs for police help for executing the
\ndecree\tand  the  learned Subordinate  Judge  requested\t the
\npolice to render the necessary help on October 1, 1948.\t  It
\nalso appears that subsequently on the same day defendant No.
\n4  filed another petition for stay of execution and  also  a
\npetition under s. 47 of the Code objecting to the execution,
\nalleging  that there was a tentative arrangement between  it
\nand the decree-holders that it would pay Rs. 150 as  monthly
\nrent  and  it  need not file any  appeal  to  challenge\t the
\nvalidity  of the decree.  The decree-holders  opposed  these
\npetitions by defendant
\n684<\/span>
\nNo.  4. The learned Subordinate Judge made no order on\tthem
\nbut adjourned them to November 11, 1948, as he felt that the
\nmatter required investigation.\n<\/p>\n
On  October  1, 1948, the Nazir of the\tCourt  proceeded  to
\npremises  Nos.\t27 and 28 with certain\tpolice\tofficers  to
\nexecute the decree in terms of the writ.  He found the\tgate
\nof premises No. 27 closed but later the manager of defendant
\nNo.  4 opened it at his request.  What\thappened  thereafter
\nappears\t from  the  return  of the Nazir  which\t is  in\t the
\nfollowing  words: ” We then entered into the  factory  house
\nand  delivered possession in each of the buildings at  about
\n10-30  a.  m.  Before removal of  the  furniture  and  other
\nmovables   from\t those\tbuildings  there  was  an   amicable
\nsettlement between the decree-holders and the manager of the
\nfactory\t that  the factory will run its normal\tbusiness  as
\nbefore for 6 weeks and in the meantime the executive body of
\nthe   factory will make settlement with\t the  decree-holders
\nand  some  of the decree-holders’ men will remain  there  as
\nguards\t“.  It is admitted that the  decree-holders’  guards
\nwere thereafter posted on the premises.\n<\/p>\n
The  Nazir then proceeded to premises No. 28 and the  return
\nalso  shows that he delivered possession of  these  premises
\nto’  the decree-holders, The relevant portion of the  return
\nis  in these words: “Then we proceeded towards the  premises
\nNo.  28 (Old No. 8) Consisting of 2 temples and\t found\tthat
\nthe priest of the temple was present.  He amicably came\t out
\nof the compound and possession was delivered of the temples,
\nlands, tanks and other plots mentioned in the writ.”
\nAfter  possession  had been  delivered,\t the  decree-holders
\nexecuted  on  the same day a receipt  in  acknowledgment  of
\npossession having been received by them.  That receipt is in
\nthese terms:\n<\/p>\n
”  Received  from  Sri\tBhabataran  Banerjee,  Naib   Nazir,
\nDistrict  Judge’s Court, Alipore, 24-Parganas,\tdelivery  of
\npossession  of premises Nos. 7 and 8 (formerly Nos.  27\t and\n<\/p>\n
28) Dum Dum Cossipore Road in the above execution case, this
\nday  at 10-30 a.m. including all buildings,  tanks,  gardens
\nand  temples, etc., all these mentioned in the writ  in\t its
\nschedule.”\n<\/p>\n
\t\t\t    685<\/span><\/p>\n
The receipt by mistake describes the premises as ”  formerly
\n” Nos. 27 and 28 for the premises then bore these numbers.
\nIt  appears  that  at 11-15 a. m. on October  1,  1948,\t the
\nexecutor  defendants  moved the High Court) for\t a  stay  of
\nexecution in the appeal filed by them from the decree.\t The
\nHigh  Court directed an ad interim stay.  After\t this  order
\nhad  been  made the executor defendants\t moved\tthe  learned
\nSubordinate  Judge on the same day for consequential  orders
\non the strength of the stay of execution granted by the High
\nCourt.\t The  learned Subordinate Judge thereupon  made\t the
\nfollowing order : ” In the special circumstances recall\t the
\nwrit  provisionally.   To  5th November,  1948,\t for,  fresh
\nconsideration  if formal stay order is not received  in\t the
\nmeantime   “.\tThis  order  was  passed   on\tthe   verbal
\nrepresentation\tof the lawyers for the\texecutor  defendants
\nthat  the High Court had directed the stay of execution\t for
\nthere  had  not been time for the High Court’s order  to  be
\nformally   drawn   up  and  produced  before   the   learned
\nSubordinate Judge.\n<\/p>\n
On November 22, 1948, which was the day fixed for making the
\nreturn\tto  the execution of the writ, the  following  order
\nappears to have been passed by the learned Subordinate Judge
\nin  the execution case: ” Possession delivered.\t  One  third
\nparty has filed an application under Or. 21, r. 100,  C.P.C.
\nLet the execution case be put up after the disposal of Misc.
\nCase No. 13 of 1948.” The Miscellaneous Case No. 13 of\t1948
\nwas the one started on the petition of the third party under
\nOr. 21, r. 100 of the Code, objecting to his removal by\t the
\nexecution.   This third party was one Bhairab Tewari and  he
\npresumably  was claiming some right in premises No.  28\t for
\nthere  was no question of his making any claim\tto  premises
\nNo. 27 which were exclusively in the possession of defendant
\nNo. 4.\n<\/p>\n
The  ad interim stay issued by the High Court on October  1,
\n1948,  in the appeal filed by the executor defendants,\tcame
\nup for final hearing and resulted in the following order  on
\nJanuary 21, 1949.\n<\/p>\n
“If anything is due on account, of costs which
\n686<\/span>
\nhas  not  been paid, that amount will be  deposited  in\t the
\nCourt  below  by defendant No. 4 (i.e.,\t Mr,  Sen’s  client)
\nwithin a month from to day, and then three month’s time from
\nto-day\twill be given to him to\t remove the machineries\t and
\nvacate\tthat  portion  of  the land  in\t suit  which  he  is
\noccupying  as  a  lessee  and which he is  using  now  as  a
\nbrewery.   In default of the deposit being made and also  in
\ndefault\t of  vacating the premises as directed\tabove,\tthis
\nRule will stand discharged.\n<\/p>\n
We  do\tnot stay delivery of possession in  respect  of\t any
\nother  item in which defendant No. 4 or No. 1, or any  other
\ndefendant save and except defendant No. 3 is interested.”
\nThe appearances of the parties recorded in this order do not
\nshow  any appearance having been made in connection with  it
\nby defendant No. 4. It does not appear from the records what
\nother  proceedings, if any, were taken in the appeal by\t the
\nexecutor  defendants  but  it  is  agreed  that\t appeal\t was
\ndismissed on September 8, 1954.\n<\/p>\n
Defendant  No.\t4  did not vacate at the end  of  the  three
\nmonths\tmentioned  in the order of January  21,\t 1949.\t The
\nparties\t then took proceedings in Criminal Courts  under  s.
\n144  of the Code of Criminal Procedure and  other  connected
\nprovisions.    It  is  not  necessary  to  refer  to   these
\nproceedings  and  it is enough to state that  they  did\t not
\naffect the possession of premises No. 27 by defendant No. 4,
\nwho  continued in possession till the United Bank  of  India
\nLtd. took over possession as hereinafter stated.
\nOn  September 8, 1949, the following order was made  by\t the
\nlearned Subordinate Judge in the execution case:
\n”  Decree-holder takes no other steps.\tPossession so far as
\nregards the Bengal Breweries are concerned, delivered.\n<\/p>\n
\t\t\t  Ordered
\nthat the execution case be dismissed on part satisfaction.”
\nOn September 27, 1951, the decree-holders made a
\n\t\t\t    687<\/span>
\nfresh  application  for execution against  defendant  No.  4
\nalone by evicting it from premises No. 27.  Defend- ant\t No.
\n4  put in an objection against the execution under s. 47  of
\nthe  Code  alleging  that so far as it\twas  concerned,\t the
\ndecree\thad been fully executed as a result of\tthe  earlier
\nexecution  proceedings\twhich  terminated by  the  order  of
\nSeptember  8,  1949,  and that\tfurther\t execution  was\t not
\npermissible  in law.  It is out of this objection  that\t the
\npresent\t appeal has arisen and the question for decision  is
\nwhether the objection to the execution so raised, is  sound.
\nAs  earlier stated, the learned Subordinate Judge  dismissed
\nthe objection to the execution but on appeal the High  Court
\nset   aside  his  order\t and  dismissed\t the  petition\t for
\nexecution.   The  High Court granted a\tcertificate  for  an
\nappeal to this Court on June 15, 1956 and on August 3, 1956,
\nthe High Court passed an order directing that the appeal  be
\nadmitted.\n<\/p>\n
On  August 11, 1960, an order was made by this Court  adding
\nthree  persons named Mool Chand Sethia, Tola Ram Sethia\t and
\nHulas  Chand Bothra as parties respondents to  this  appeal.
\nThe  order  however  provided that  the\t appellants  decree-
\nholders would have a right to object to the locus standi  of
\nthese persons in the appeal.  At the hearing before us\tonly
\nthese  added  parties  appeared to contest  the\t appeal\t The
\nappellants  have  raised a preliminary\tobjection  that\t the
\nadded  parties have no locus standi and cannot be  heard  in
\nthe appeal.\n<\/p>\n
It   appears  that  defendant  No.  4  had  executed   three
\nsuccessive mortgages of premises No. 27 with all  structures
\nand  appurtenances,  to\t a bank called\tthe  Coming  Banking
\nCorporation  Ltd.   The first of these\tmortgages  had\tbeen
\nexecuted  on May 25, 1944, and the other two  mortgages\t had
\nbeen executed after the suit in ejectment had been filed but
\nbefore\tthat  suit  had been decreed.\tThe  assets  of\t the
\nComing\tBanking Corporation Ltd. became subsequently  vested
\nin  the United Bank Limited.  Some time in 1953, the  United
\nBank filed a suit for enforcement of the mortgages.  On\t May
\n30, 1955, a final mortgage decree was passed
\n88<\/span>
\n688<\/span>
\nin  favour  of the United Bank.\t On July  20,  1956,\t the
\nmortgaged properties were put up to auction and purchased by
\nthe  United Bank.  On March 1, 1958, the mortgage  sale\t was
\nconfirmed  and\tsubsequently   the United  Bank\t was  put in
\npossession of premises No. 27.\tOn July 13,1960, the  United
\nBank Conveyed premises No. 27 along with all structures\t and
\nappurtenances and all its right, title and interest  therein
\nto  these  added  respondents.\t It is\tby  virtue  of\tthis
\nconveyance  that  the added respondents obtained  the  order
\nfrom  this Court dated August 11, 1960, making them  parties
\nto the appeal.\tDefendant No. 4, the Bengal Breweries  Ltd.,
\nis  now in liquidation and it has not entered appearance  to
\nthis appeal nor taken any steps to defend it.
\nIt  appears to us that the added respondents  were  properly
\nbrought\t on’  record.  The decision of this Court  in  Saila
\nBala Dassi v. Nirmala Sundari Dassi<\/a> (1), supports that view.
\nThere it was held that an appeal is a proceeding within\t the
\nmeaning\t of  s.\t 146 of the Code and the right\tto  file  an
\nappeal carried with it the right to continue an appeal which
\nhad  been  filed  by the person\t under\twhom  the  appellant
\nclaimed\t and  on this basis a purchaser from  the  appellant
\nunder  a purchase made prior to the appeal was’\t brought  on
\nthe  record  of\t the  appeal.  We think\t that  on  the\tsame
\nprinciple  the added respondents in the case before us\twere
\nproperly brought on the record.\n<\/p>\n
It  is not in dispute that if the decree was  once  executed
\nagainst defendant No. 4 in full, then it cannot be  executed
\nover  again regarding premises No. 27.\tIn other  words,  if
\npossession  had been fully delivered to\t the  decree-holders
\nin.  execution of the decree on October 1, 1948, the  decree
\nmust  have been wholly satisfied and nothing remains  of  it
\nfor  enforcement by further execution.\tThe decree  was\t for
\nkhas  possession  and under Or. 21, r. 35, of this  Code  in
\nexecution of it possession of the property concerned had  to
\nbe delivered to the decree-holders, if necessary, by  remov-
\ning any person bound by the decree who refused to vacate the
\nproperty.  The records of the proceedings
\n(1)  [1958] S.C.R. 1287.\n<\/p>\n
689<\/span><\/p>\n
show  that such possession was delivered.  Defendant  No.  4
\nwas  the party in possession and bound by the decree.\tWith
\nregard\tto defendant No. 4, the order made on  September  8,
\n1949,  states,\t” Possession so far as\tregards\t the  Bengal
\nBreweries  are\tconcerned,  delivered.”\t This  is  an  order
\nbinding\t on the decree-holders.\t It has not been  said\tthat
\nthis  order  was wrong nor any attempt made at any  time  to
\nhave  it  set aside or to challenge its correctness  in\t any
\nmanner.\t  The same is the position with regard to the  order
\nof  November 22, 1948, recording on the Nazir’s return\tthat
\npossession had been delivered in terms of the writ.
\nThe order of September 9, 1949, no doubt further’ states,  ”
\nOrdered\t that  the  execution  case  be\t dismissed  on\tpart
\nsatisfaction  “.  The words ” part satisfaction\t ”  in\tthis
\norder, however clearly do not refer to part satisfaction  as
\nagainst defendant No. 4, the Bengal Breweries, for the order
\nexpressly states, ” possession so far as regards the  Bengal
\nBreweries   are\t concerned,  delivered.”  The\tdecree\t had
\ntherefore  been\t satisfied  in full as\tagainst\t the  Bengal
\nBreweries  Ltd. and consequently as regards premises No.  27
\nin  its possession.  Even the learned Subordinate Judge\t who
\nheld  the  execution maintainable found that ”\tthe  decree-
\nholders\t had no doubt previously got possession “.  Notwith-
\nstanding  this, the learned Subordinate Judge  decided\tthat
\nthe decree could still be executed as he took the view\tthat
\nat  the hearing before the High Court on January  21,  1949,
\ndefendant  No.\t4  ”  must  have  ignored  the\tdelivery  of
\npossession  by the Naib Nazir and he cannot now be heard  to
\nsay  that the delivery of possession by the Naib  Nazir\t was
\nlegal  and valid “. For reasons to be stated later,  we\t are
\nunable to agree with this view.\n<\/p>\n
It is true that the Nazir’s return showed that defendant No.
\n4  had\tnot been bodily removed.  But the same\treturn\talso
\nshows  that  it had not been so removed because\t of  certain
\narrangement arrived at between it and the decree-holders and
\nas  the\t decree-holders\t had not  required  the\t removal  of
\ndefendant No. 4 from the premises.  Now under Or. 21, r.  35
\na  person  in possession and bound by the decree has  to  be
\nremoved
\n690<\/span>
\nonly if necessary, that is to say, if necessary to give\t the
\ndecree-holder the possession he is entitled to and asks for.
\nIt would not be necessary to remove the person in possession
\nif the decree-holder does not want such removal.  It is open
\nto the’ decree-holder to accept delivery of possession under
\nthat   rule  without  actual  removal  of  the\t person\t  in
\npossession.  If he does that, then lie cannot later say that
\nhe  has\t not  been given that possession  to  which  he\t was
\nentitled under the law.\t This is what happened in this case.
\nThe decree-holders in the present case, of their own accept-
\ned delivery of possession with defendant No. 4 remaining  on
\nthe premises with their permission.  They granted a  receipt
\nacknowledging  full delivery of possession.  They  permitted
\nthe execution case to be dismissed on September 8, 1949,  on
\nthe basis that full possession had been delivered to them by
\ndefendant No. 4. The fact that they put their guards on\t the
\npremises as mentioned in the Nazir’s return would also\tshow
\nthat they had obtained full possession.\t It was open to\t the
\ndecree-holders to accept such possession.  Having once\tdone
\nso, they are bound to the position that the decree has\tbeen
\nfully  executed,  from which it follows that  it  cannot  be
\nexecuted  any more.  In the case of Maharaja  Jagadish\tNath
\nRoy  v. Nafar Chandra Parmanik (1) an exactly similar  thing
\nbad happened and it was held that the decree was not capable
\nof further execution.  It was there said at p. 15,
\n” The case, therefore, seems to me to be one of those  cases
\nin which a decree-holder having armed himself with a  decree
\nfor  khas  possession  executes that  decree  in  the  first
\ninstance  by obtaining symbolical possession only with\tsome
\nulterior object of his own, and thereafter subsequently\t and
\nas  a  second  instalment asks\tfor  khas  possession.\t The
\nquestion  is whether such a course is permissible under\t the
\nlaw.  I am of opinion that it is not “.\n<\/p>\n
We entirely agree with the view that was there expressed.
\nThe  learned Solicitor-General appearing for the  appellants
\ncontended that the order of September 30,
\n(1)  (1930) 35 C.W.N. 12.\n<\/p>\n
\t\t\t    691<\/span><\/p>\n
1948, shows that the decree-holders bad undertaken to  allow
\ndefendant  No. 4 to carry on normal business for  six  weeks
\nand  therefore, on October 1, 1948, when they  proceeded  to
\nexecute\t the decree, they were not seeking to execute it  in
\nfull  by removing defendant No. 4 from possession.  He\tsaid
\nthat  the  execution on October 1, 1948, was  therefore\t not
\ncomplete as defendant No. 4 had not been removed pursuant to
\nthe undertaking given on September 29, 1948.  We are  unable
\nto read the order made on September 8, 1949, or the  Nazir’s
\nreturn\tand the receipt granted by the decree-holders  in  a
\nmanner\tcontrary to the plain meaning of the words  used  in
\nthem,  because of the undertaking.  Further, it is  not\t the
\ncase of the decree-holders that order, the Nazir’s return or
\nthe receipt is incorrect or had come into existence  through
\nany misapprehension.  The legality or correctness of none of
\nthese  was  ever  nor  is  now\tchallenged.   The  order  of
\nSeptember 8, 1949, is binding on the decree-holders and they
\ncannot\tnow  go\t behind its terms.   For  the  same  reason,
\nneither\t can they go behind the order of November 22,  1948,
\nrecording in terms of the Nazir’s return that possession had
\nbeen delivered.\n<\/p>\n
It  further seems to us that if the undertaking\t meant\tthat
\ndefendant No. 4, was not to be removed from possession, then
\nthe execution would have been stayed, which it was not,\t for
\nthe only way in which it was possible to execute the  decree
\nwas by removal of defendant No. 4 from possession as it\t was
\nalone in actual possession, the executor defendants claiming
\nonly  rent  from it as landlord.  Then again  the  order  in
\nwhich the undertaking appears, also states that the stay  of
\nexecution  against  defendant  No. 4 as\t asked\tby  it,\t was
\nrefused.    Besides  this,  the\t order\tsheet\tshows\tthat
\nimmediately after the order stating the undertaking had been
\nmade  another order was made on the same  day  acknowledging
\nreceipt\t from the decree-holders of the costs of the  police
\nfor  helping  the execution and directing  that\t the  police
\nmight be approached to render any help necessary on  October
\n1,  1948, at the time of the execution of the  decree.\t The
\nonly  possible way to reconcile all the various orders,\t the
\nreturn
\n692<\/span>
\nand  the  receipt, is to proceed on the basis  that  by\t the
\nundertaking  the decree-holders agreed that after  they\t had
\ntaken  possession,  they  would allow  defendant  No.  4  to
\ncontinue  its  business on the premises for six\t weeks\twith
\ntheir  permission.  Such undertaking does not show  that  it
\nwas not intended to remove defendant No. 4 from possession.
\nThe  learned Solicitor-General also contended that the\tfact
\nthat  the undertaking was confined only to a period  of\t six
\nwee s would show that the decree-holders were not permitting
\ndefendant  No.\t4 to continue in possession after  they\t had
\nobtained  possession from it, for then no period would\thave
\nbeen  mentioned.  We are unable to accept this argument\t for
\nthere  is nothing to prevent the decree-holders\t after\tthey
\nhad   obtained\tpossession  under  the\tdecree,\t  to   grant
\npermission to defendant No. 4 to continue in possession\t for
\nany  period  they. liked; such permission could be  for\t six
\nweeks  or  for any longer or shorter period as\tthe  decree-
\nholders thought fit.\n<\/p>\n
The  learned Solicitor-General then contended that the\tcase
\nwas one where the decree had been partly executed on one day
\nand execution had been stopped on that day for want of\ttime
\nor  other  reason,  with the object of continuing  it  on  a
\nsubsequent  day.   In such a case, he said, there  would  be
\nnothing to prevent subsequent execution of the same  decree.
\nIt  does  not seem to us that the present case\tis  of\tthis
\nnature.\t The orders and documents on the record are  against
\nthis  view.  The further execution is not in the  course  of
\nthe  earlier  execution\t but  is  a  fresh  execution.\t The
\ninterruption in the execution was for over two years.  Apart
\nfrom  other things, the placing of their own guards  on\t the
\npremises  by the decree-holders could only be on  the  basis
\nthat  they  had taken possession.   The\t learned  Solicitor-
\nGeneral\t said  that the guards had been put there  with\t the
\npermission  of\tdefendant  No.\t4.  The\t Nazir’s  return  is
\nentirely  against such a view.\tIndeed, it is  difficult  to
\nsee  why  defendant No. 4 would permit\tthe  decree-holders’
\nguards\ton  the\t premises unless it was on  the\t basis\tthat
\npossession  had\t been taken by the  decree-holders  and\t the
\nguards
\n\t\t\t    693<\/span>
\nwere  there  to protect their possession.  The\tguards\twere
\nsubsequently  removed  but  it does  not  appear,  from\t the
\nrecords. in what circumstances they were’ removed.
\nNor  do we think that the order of October 1, 1948,  assists
\nthe  decree-holders.   That order directed the\twrit  to  be
\nrecalled  provisionally.  The order was\t wholly\t infructuous
\nfor  the writ had earlier been duly executed.\tThe  learned
\nSubordinate Judge himself came to that finding.\t This. as we
\nhave  said, is also clear from the records of the  execution
\ncase.\tThe  writ could not be recalled after  it  had\tbeen
\n‘executed  fully.   Nor does the order\testablish  that\t the
\ndecree had been executed in part only.\tThe writ was not  in
\nfact  recalled before the decree had been executed in  full.
\nThe order of September 8, 1949, makes it impossible to\thold
\nthat  the  writ was recalled after it had been\texecuted  in
\npart only.\n<\/p>\n
The other argument advanced by the learned Solicitor-General
\nwas  based on the order of the High Court dated January\t 21,
\n1949.  It was said that order indicated that the decree\t had
\nnot   been  executed  by  removing  defendant  No.  4\tfrom
\npossession because it, in substance, was an order for a stay
\nof execution of the decree.  It was also said that the order
\nmust have been on the basis of a representation by defendant
\nNo. 4 and a finding that the decree had not been executed by
\nremoving  defendant No. 4 from possession.   The  contention
\nwas that finding and representation was binding on defendant
\nNo.  4\tand therefore on the added respondents\tand  further
\nthat having obtained the order on the basis that it had\t not
\nbeen  ousted from possession in execution, defendant  No.  4
\nand  hence the added respondents, could not be permitted  to
\napprobate  and reprobate that position and now be heard\t to-
\nsay that the decree had been executed in full.
\nWe  think that both these contentions are  ill-founded.\t The
\norder  is far from clear.  We have already pointed out\tthat
\nthere  is  nothing in it to show that defendant\t No.  4\t had
\nasked  for any stay.  Defendant No. 4 had not appealed\tfrom
\nthe decree.  It was not
\n694<\/span>
\nentitled  to a stay of the execution of the decree.  It\t was
\nin  possession\tof the premises with the permission  of\t the
\ndecree-holders.\t  The permission had initially been for\t six
\nweeks  which period had expire was executor  defendants\t who
\nhad  obtained  an  ad interim stay from the  High  Court  on
\nOctober 1, 1948.  This order was infructuous because  forty-
\nfive minutes prior to the time that it was made, the  decree
\nhad been executed in full.  In those circumstances the Court
\non January 21, 1949, may be at the request of defendant\t No.
\n4,  gave it three months’ time to vacate the premises.\t The
\nrequest,  if  any,  by defendant No. 4 does  not  involve  a
\nrepresentation\tthat  the decree had not  been\texecuted  in
\nfull.  It may, at most, mean that the six weeks’  permission
\ninitially  granted  by the decreeholders  might\t be  further
\nextended.   With  regard. to the other\tcontention,  namely,
\nthat  the order of January 21, 1949, amounted to  a  finding
\nthat  the decree had not been executed in full, we  have  to
\npoint  out that no such finding appears on the face  of\t it.
\nThe  order was made on an interlocutory proceeding  and\t was
\nonly  in  aid  of the final decision  in  the  appeal.\t The
\nproceeding  in\twhich the order was made did not  involve  a
\ndecision  of the issue whether the decree had  earlier\tbeen
\nexecuted in full.  No finding on such an issue can therefore
\nbe implied in the order.  This order does not in our view in
\nany  way prevent the added respondents from contending\tthat
\nthe decree had been executed in full.\n<\/p>\n
In  the result this appeal fails and it is dismissed. We  do
\nnot think it fit to make any order as to costs.\n<\/p>\n
\t\t     Appeal dismissed.\n<\/p>\n
\t\t\t    695.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shew Bux Mohata And Others vs Bengal Breweries Ltd. And Others on 15 September, 1960 Equivalent citations: 1961 AIR 137, 1961 SCR (1) 680 Author: A Sarkar Bench: Sarkar, A.K. PETITIONER: SHEW BUX MOHATA AND OTHERS Vs. RESPONDENT: BENGAL BREWERIES LTD. AND OTHERS DATE OF JUDGMENT: 15\/09\/1960 BENCH: SARKAR, A.K. BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-80715","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShew Bux Mohata And Others vs Bengal Breweries Ltd. 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