Authored By : Macpherson, Beverley

Macpherson, J.

1. No evidence has been recorded in this case, and the onlyquestion we are called upon to decide is, whether the plaint discloses a causeof action on which the suit can be maintained. The Subordinate Judge held thatit did not do so. The Additional Judge took a different view and remanded thecase for trial on the merits. The appeal is against the order of remand.

2. The allegations in the plaint are to the effect that theplaintiff after foreclosure obtained a decree against the defendant forpossession of properties mortgaged by him, including a house standing on twobiggahs of land, and other lands, some of which were, it is now stated, in theoccupation of tenants; that the plaintiff executed this decree, and on the 12thJuly 1879 obtained possession of all the properties with the aid of the Court;but that the defendant without entering into any settlement continued to holdpossession of two biggahs of land and the buildings thereon, although he hadbeen served with a notice to quit in June 1881. The suit is accordingly broughtto recover possession of the two biggahs of land and of the buildings, and thecause of action is said to have arisen on the 6th August 1881, when the term ofnotice expired. The defendant in his answer took various pleas; he denied thatthe property claimed was covered by the mortgage deed; and he pleaded that,after a series of compromises subsequent to the decree, the mortgage debt hadbeen fully liquidated. The only pleas with which we are now concerned are thoserelating to the absence of a cause of action, and to the jurisdiction of theCourt to entertain the suit.

3. It is to be regretted that the first Court did not, beforedismissing the suit, determine in what particular way the plaintiff obtainedpossession, and what he meant by saying that the defendant "withoutentering into any settlement continued to hold possession," as this mightmean that some settlement was contemplated by the parties, but was not carriedinto effect.

4. Both sides have argued before us on the understandingthat formal, though not actual, possession was given by the Court; that is tosay, possession in the way referred to in Section 284. The defendants denialthat any possession was obtained in execution is explained to mean that therewas no transfer of possession, and this is of course true from his point ofview, as his actual possession was never disturbed, and he denies that theproperty was at all affected by the decree.

5. The question, therefore, is whether a person entitledunder a decree to actual physical possession of property can, after obtainingmerely formal possession, bring a suit to oust the defendant, or, whether hemust complete his possession by proceedings in execution of his decree. Inother words, does the delivery of such formal possession give him a cause ofaction for a fresh suit. There has been a good deal of controversy and someconflict of decisions as to the effect of a formal delivery of possession underSection 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. 584that possession given under Section 224 of the old Code (corresponding toSection 264 of the present one) is, as against the defendant, equivalent toactual possession and gives a fresh starting point for limitation. Thisoverruled the case of Pearee Mohun Poddar v. Juggobundhu Sen 24 W.R. 418 inwhich it was held that a formal delivery of possession under Section 224,unaccompanied by any subsequent actual possession, did not give rise to a freshcause of action. The Full Bench case is not precisely in point, as theplaintiff in that case was only entitled to the kind of possession which couldbe obtained under Section 224, the land being in the occupation of tenants.

6. If, however, the delivery of possession in the mannerdescribed in Section 264 does, in the eye of the law, place the plaintiff inpossession as against the defendant, I do not see how any less effect can begiven to it simply because the defendant was not at the time ejected. If thedefendant afterwards refuses to quit, he remains as a trespasser at his ownrisk and has only himself to blame if he is subjected to the harassment of afresh suit.

7. But there is distinct authority for holding that the sameprinciple will apply in the case of a person who, being entitled to actualpossession under Section 263, takes only formal possession.

8. In the case of Umbicka Churn Goopta v. Madhub GhosalI.L.R. 4 Cal. 870 the plaintiff obtained a decree for possession by theejectment of the defendant, but in 1866 took only formal possession through theCourt. 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 givea fresh cause of action, notwithstanding that actual possession was neverobtained. Similarly in Lokessur Koer v. Purgun Roy I.L.R. 7 Cal. 418 the plaintiffhad a decree for khas possession, bub took only formal possession byproclamation and beat of drum, and then brought a suit against the defendantwithin 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 lawand fact as a complete transfer of actual possession from one party to theother. It is true that the question in issue in these cases, and in the FullBench case, was one of limitation; but, to decide this, the Court had todetermine when the cause of action arose, and it held that the plaintiff couldsue 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 completetransfer of the property and furnished, in the cases referred to, a goodfoundation for a fresh suit, the same result must, I think, follow in thepresent one. The execution proceedings end with the delivery of possession, andthere being a fresh cause of action, there is no bar to the jurisdiction of theCourt.

10. The appellants pleader relies on the cases of MahomedWali v. Noor Buksh 25 W.R. 127; Kristo Gobind Kur v. Gunga Pershad Surmah 25W.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 thedecision in Mahomed Wali v. Noor Buksh. The correctness of the decision inKristo Gobind Kur v. Gunga Pershad Surmah was doubted in the case of LolitCoomar Bose v. Ishan Chunder Chuckerbutty and the principle on which itproceeded has not been followed in subsequent cases. I think the decision ofthe Judge is correct, and that the appeal must be dismissed with costs.

Beverley, J.

11. I must confess that I have had considerable doubt inthis case; but on the whole I am inclined to agree with my learned brotherthat, although there is some conflict of authority in the matter, we are boundto follow the later decisions of this Court.

12. The question before us is simply this,--whether a personwho has obtained a decree for Immovable property in the occupancy of thejudgment-debtor, and who in execution of that decree has taken mere formalpossession of such property, is entitled to bring a fresh suit to compel thesame judgment-debtor to deliver up the actual physical possession of theproperty.

13. Sections 263 and 264 of the Code prescribe the mode inwhich decrees for Immovable property shall be executed.

14. Section 263 refers to cases when the property is in theoccupancy 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, ifneed be, by removing any person bound by the decree who refuses to vacate theproperty."

15. Section 264, on the other hand, refers to cases when theproperty is "in the occupancy of a tenant or other person entitled tooccupy 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 Courtsorder in the manner laid down.

16. This distinction was fully recognized in the Full Benchdecision in Juggobundhu Mukerjee v. Ram Chunder Bysack I.L.R. 5 Cal. 584 andthat decision only applies to cases falling under Section 264, that is, tocases in which the property decreed is not in the occupancy of thejudgment-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 thequestion is, whether, if the decree-holder does not choose to put in motionthis power of the Court, but contents himself with a mere formal orderdeclaring his possession, but giving him no actual possession at all, he is atliberty to commence the whole proceedings de novo, and to bring a fresh suitand obtain a fresh decree.

18. It is contended that such a fresh suit is barred both bythe provisions of Section 244 of the Code, and also by Section 18. Section 244says that all questions arising between the parties to a suit in which a decreehas been passed, and relating to the execution of the decree, shall bedetermined by order of the Court executing the decree, and not by separatesuit. It is contended that the Court having power under Section 263 to oust thejudgment-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 judicataunder Section 13 of the Code, on the ground that no fresh cause of actionarises from the mere refusal of the judgment-debtor to deliver quietpossession, and the omission on the part of the decree-holder to enforce hisdecree in accordance with the provisions of Section 263.

20. In support of these contentions we are referred to thecases of Mahomed Wali v. Noor Buksh 25 W.R. 127 Kristo Gobind Kur v. GungaPershad Surmah 25 W.R. 372; Lolit Coomar Bose v. Ishan Chunder Chuckerbutty 10C.L.R. 258.

21. The case of Mahomed Wali v. Noor Buksk 25 W.R. 127appears to be on all fours with the present. In that case it was held, to usethe language of Mitter, J. in Umbicka Churn Goopta v. Madhub Ghosal I.L.R. 4Cal. 870 "that unless possession (which the report shows to meansubstantial possession) is obtained in execution of a decree for possession ofland, the decree-holder cannot maintain a second suit for possession againstthe same defendants, alleging a fresh disturbance of his possession."

22. The case of Kristo Gobind Kur v. Kishen Persad Surmah 25W.R. 372 went further, and decided that even an auction-purchaser was confinedto the remedies prescribed by the Code Section 318, 319, and that if he failedto obtain possession under those sections, he could not bring a fresh suit.

23. This decision was followed in Lolit Coomar Bose v. IshanChunder Chuckerbutty 10 C.L.R. 258 but its correctness was doubted; and it hassince been held Seru Mohun Bania v. Bhagoban Din Pandy I.L.R. 9 Cal. 602 thatan 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 ifthe 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 anauction-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 Section244 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. 418relate to a decree-holder, and are relied on as authority that a fresh suitwill lie.

25. In the first case a tenure was sold for arrears of rentand purchased by the decree-holder in 1864; in 1865 the decree-holder sued toeject the tenants, and having obtained a decree she took formal possession in1866. She then gave a lease of the tenure to the plaintiff, who in 1877 sued tooust the old tenants, and it was held that the formal possession obtained in1866 was sufficient to bar limitation. It is true that the question raised inthat case was one of limitation only, and that the precise point that arises inthe present case was not directly decided. The plaintiff in that suit was notthe decree-holder in the former suit, and the suit could not, therefore, havebeen barred under Section 13 or Section 244 of the Code. But I think it must betaken to have been virtually decided, that the formal possession taken in 1866gave not only a fresh starting point as regards limitation, but also a freshcause 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 thefacts were very similar to those in the present case, but in that case also theprecise point now before us was not directly taken, the only question raisedand decided being, whether the delivery of formal possession was a sufficientanswer to a plea of adverse possession for more than 12 years. The remarks madein that case, however, support the view that a fresh cause of action arises atthe time the decree-holder is put into possession, and that the form in whichpossession is given is really immaterial. In the majority of cases no doubt theformal 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 feeljustified in forcibly ejecting the tenant.

27. But if the judgment-debtor remain in occupancy afterformal delivery of possession, he thereby becomes a trespasser no less than ifhe were to vacate at the time and return the day after. And having thus becomea trespasser, a fresh cause of action arises to the decree-holder who maythereupon sue for ejectment. The judgment-debtor has no ground for complaint inbeing thus twice sued; he is bound to obey the decree, and if he continues inpossession after execution, he does so at his own risk. For these reasons Iconcur in dismissing the appeal.

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Madhub Chandra Mookerji and Ors. vs. Shama Charan Chatterji(12.09.1884 - CALHC)