(1) This revision petition is directed by the legal representative of the first defendant against the order of the iind asst. Judge, city civil court, hyderabad in e. P. No. 79/71 appointing a commissioner who recommended that the matter be referred to a valuer for working out equities in dividing the suit house. The circumstances leading to the revision petition briefly stated are these: the first respondent (plaintiff no. L) herein laid a suit against the defendants, the first defendant being the pre decessor in interest of the revision petitioner herein he also happens to be natural father of the second defendant. The suit was for reconveyance of suit house based on an agreement of conveyance. The trial court decreed the suit and this was confirmed by the first appellate court. In a second appeal preferred by the second defendant in the suit, the decrees of both the courts were modified. The operative portion of the judgment in the second appeal reads as follows: - - "the plaintiffs will therefore be entitled to specific performance of the agreement ex. A - 2 only to the extent of the half share of the first defendant on payment of consideration so far as the question of possession is concerned, the result will be that the second plaintiff to whom the rights were assigned by the first plaintiff in ex. A - 3 will be entitled to a half share and joint possession on his payment of half of the consideration and execution of the sale deed by the first defendant. In other words, the second plaintiff (the assignee) will step into shoes of the first defendant on performing his part of the contract in terms of ex. A - 2. The first plaintiff will be accordingly entitled to the mesne profits to the extent of the half share of the first defendant. The decree of the court below is accordingly varied and the suit decreed as per the above terms. Thus the high court in the second appeal held that the second plaintiff (the assignee of the first plaintiff) is entitled to half share in the suit property which was held by the first defendant and also for joint possession on payment of the consideration and execution of the sale deed by the first defendant it is common ground that the second plaintiff had to file an execution petition and get the sale deed executed by the court as the first defendant did not execute the sale deed. However the salt deed was executed by the court on payment of the consideration amount. It is also the common ground that as the first defendant died this revision petitioner was brought un record as the legal representative of the first defendant. Since the sale deed was executed. The decree - holder sought permission covered by the sale deed. Though in the execution petition at first he sought only joint possession he filed an application for the appointment of a commissioner seeking to partition the suit property as a measure to have the property divided so that he may nave separate possession. It is relevant to note that the decree itself provided for joint possession and not for separate possession. The commissioner opined that the suit property is capable of division rut that certain equities have to be worked out and that in order to work wt the equities it is better to have the opinion of an evaluator so that the necessary improvements required can be valued properly end in that manner both the shares can be equalised. Though it does not appear that this very revision petitioner took objection to the appointment of the commissioner yet when the commissioner filed his report he raised objections to the effect that the appointment of commissioner itself is bad and that the question working out equities not arise. The trial court over ruled the objections hence this revision petition.
(2) While it is contended for the revision petitioner that the remedy of the decree - holder seeking actual possession was by way of separate suit for partition consequent to the sale deed in his favour, as a result of the decree it was contended that what the trial court did was only in pursuance of the decree passed by the high court and consequence of the contract of re - conveyance in his favour and that executing court is only acting in pursuance of the decree and the executing court is competent to take all incidental steps to put the decree - holder in physical possession of his half share given by dividing it if necessary.
(3) It cannot be disputed that the terms of the decree as passed by the high court in second appeal clearly envisages a decree for joint possession. It only provides for joint possession rd the plaintiff along with the second defendant. It does not provide for any separate possession of any of the plaintiffs. We are now on the question as to how a decree for joint possession is to be executed. Order 21 rule 35 sub - rule (2) of civil p c. Lays down the provision as to how a decree for joint possession is to be executed. It reads as follows:
"where a decree is for the joint possession of immovable property, such possession shall he delivered by affixing a copy of the warrant in some conspicuous place oil the property and proclaiming by beat of drum, or other customary mode, at some convenient plate, the substance of the decree"
the rule contemplates only a symbolical possession it does not contemplate the delivery of physical possession. It is useful to refer m this context, air commentary by chitaley to the said order. The relevant passage in note 6 reads as follows:
"under the old code (prior to 1908) it was held that a decree for joint possession may be executed by putting the plaintiff in actual possession of a portion of the property. The difficulty which arises in giving such delivery of joint possession has how been removed by the enactment of sub - rule (2) prescribing the mode in which such delivery should be made. The delivery of joint possession under this rule is merely a symbolical transaction."
The very note refers to a ruling of 1939 all lj 335 which says that the decree - holders remedy for getting actual possession is a suit for partition. That ruling is of course not available presently. But what the note says is that the nature of delivery of possession in case of a decree for joint possession is only a symbolical one and not a physical one. Obviously the execution in cases of a decree for joint possession presents numerous difficulties and a case like this equally presents such difficulty. Having regard to the possibility of such difficulties, the present rule is enacted whereby the necessity for physical delivery of possession is dispensed with: all that is delivered is a symbolical possession. I have no hesitation in my mind in holding that the attempt of the lower court to appoint a commissioner or to divide the house into two equal parts is a vain attempt, resulting in circumventing the provisions of the code of civil procedure referred to above. This itself warrants interference by way of revision.
(4) Mr. Sriramulu, the learned counsel for the respondent vehemently contended that a decree for joint possession is not a nullity. Reliance is sought to be placed on a ruling of manikyala rao v. Narasimhaswami, air 1966 sc 470. Though that was a case of sale of an undivided share of a hindu coparcener and the ruling has come to be rendered m a different context. It was held that the order of delivery of possession of an undivided share of a hindu coparcener is not a nullity because it cannot be said that it was passed without jurisdiction. That ruling is of no avail to the respondent.
(5) It was next contended by mr. Sreeramulu the learned counsel for the respondent that even though the decree is silent about delivery of possession pursuant to a decree of contract of sale in a suit for specific performance, the executing court can order delivery of possession. There need hardly be any dispute with this proposition. It is so held in subhodh kumar v. Hiramoni dasi. Air 1455 cal 267 that possession followed the terms of section 55 of transfer of property act which is an incident of contract for sale. It was therefore held that even though the decree is silent about delivery of possession, once the court decrees the suit for specific performance of a contract of sate it was held that the executing court is cornpetent to direct delivery of possession this case is equally of no avail to the respondent to support the proposition that even in care of a decree of joint possession the decree - holder can yet seek actual possession to the extent of half. In dadulal v deo kunwar. Air 1963 madh pra 86 it is held that executing court has jurisdiction to deliver possession to the decree - holder in a decree for specific performance of contract of sale. That case also does not cover a situation which we are now concerned. In the light of the discussion, i hold that as o. 21. R. 35 at c. P. C. Specifically provides the mode of execution case of a decree for joint possession and does not provide for putting the decree - holder in possession of a specific half portion as per the decree in his favour, it was not open to the trial court to have the suit properties divided by appointment of commissioner nor any equities could be worked out. At this stage, the trial court certainly exercised its jurisdiction not vested in it by the court it was however the contention of mr. Sriramulu. The learned counsel for the respondent that the decree was passed by the high court as early as in 1970 and on one ground of the other the execution is being dragged and that the substantial justice has been done by the trial court. It was also his strenuous contention that the first defendant cannot continue in possession and that he is bound to vacate the possession. The question of substantial justice does not mean the violation of accepted principles of law or the negation of the provisions as laid down by the code. We are not new on the question whether the first defendant can remain in possession but the question as posed above is whether the decree - holder is entitled for separate possession of the half share in the suit house when the decree provides only joint possession. That question has to be answered before considering whether the right of the first defendant to resist the prosecution is considered thus the ground of the right of the decree - holder to take out the execution petition fails, in the light of the above discussion, the order under revision is liable to be set aside and is accordingly jet aside the revision petition is allowed, but, in the circumstances, without costs.
(6) Petition allowed.