Wort, J.:— This is the defendant's appeal in an action in which the plaintiff claimed a declaration of title and possession of a certain property details of which it is unnecessary to state.

The predecessor in title of the plaintiff executed a certain mortgage deed in the year 1883; an action was brought on this mortgage and a decree was obtained. There was then an appeal by one of the defendants; the appeal was dismissed, the plaintiff succeeded in getting a decree for costs, and, in execution of that decree, the property which is the subject-matter of this dispute was purchased by the predecessor in title. In the year 1886 other mortgages were executed of this property and ultimately, without stating the details of the litigation, the predecessor in title of the plaintiffs obtained a mortgage decree and purchased the property in dispute in that mortgage decree on the 12th December, 1908. In March of 1912 the sale was confirmed. On the 22nd January, 1915, they took out a writ of delivery of possession, and, it is stated, were given possession. In the course of this litigation this possession has been described as symbolical possession. By that is meant, I presume, constructive possession. But in the view that I take of the case it is quite irrelevant to discuss that matter.

Now two facts are outstanding, one that the property which is the subject-matter of this dispute was purchased by the defendants in a money decree; secondly, the same property was purchased by the predecessor in title of the plaintiffs in a mortgage decree. The result, therefore, is that the plaintiffs have a superior title to that of the defendants.

In 1927 this action was brought by the plaintiffs and has been disposed of by the trial Court by coming to the conclusion that the action was barred by limitation.

The learned District Judge dealt with the case as a case coming under Article 142. He has stated in the course of his judgment that the plaintiffs obtained possession in 1915, that they were subsequently dispossessed, and, therefore, when they brought their action in the year 1927 they were clearly in time, and in the result he has given the plaintiffs a decree.

Now the conclusion at which the learned District Judge has arrived was, in my judgment, right; but I do not altogether agree with the reasoning by which he has arrived, at that decision. The action was treated, as I have already stated, as an action under Article 142. Whatever the evidence in the case may have been, when the plaint in the action is analysed it is quite clear that the contention of the plaintiffs was not that they had got possession and had been subsequently dispossessed but that they had failed to get possession from the defendants. That was their complaint.

It was suggested in the course of the argument that Article 138 of the Limitation Act applied. It was pointed out by my learned brother in the course of the argument that Article 138 would appear to apply to a case in which a decree-holder having purchased a property had failed to take advantage of the procedure under the Civil Procedure Code for the purpose of obtaining possession when the judgment-debtor was in possession, and in those circumstances he brings an action to obtain possession which he might have obtained under the Civil Procedure Code had he been so minded. In my judgment that Article does not apply to a case of this character. The Article, therefore, remaining is Article 144. No authority, need be quoted for the proposition that in those circumstances it being a case under Article 144 the onus was upon the defendants to show that they had got a title at the time of the action by adverse possession.

Now the only question, therefore, that really arises in this case is whether the adverse possession ran from the 12th December, 1908, the date of the sale, or March, 1912, when the sale was confirmed, or on the 22nd January when the writ of delivery was taken out by the plaintiffs. Quite clearly it was not on the 12th December, 1908, which was merely the date of the sale, confirmation of the sale having taken place three years later, as I have stated, in 1912. The real competition is between the date of the confirmation of the sale in 1912 and the writ of delivery of possession in 1915.

Now quite apart from authority, it seems to me clear that in any sense of the word the title of the defendants cannot be said to be adverse until such a time arrived when the plaintiff attempted to enforce his rights under the sale. That clearly was in January of 1915. Once having decided that point, the matter, in my judgment, becomes clear and the only conclusion at which I can arrive is that the learned District Judge was right in saying that the plaintiffs were within time when they brought their action in 1927.

I am of opinion, therefore, that the appeal should be dismissed with costs.

Khwaja Muhammad Noor, J.:— I agree that the appeal should be dismissed with costs. It is unnecessary to go into any details of the facts of the case which are very simple.

The plaintiffs sued for recovery of possession of the property in dispute, basing their title on a purchase at an auction sale held in execution of a mortgage decree. The dates of various events leading to the sale and subsequently to the delivery of possession are rather important.

The mortgage decree in execution of which the sale relied upon by the plaintiffs was held was passed on the 29th March, 1888, and after a somewhat prolonged litigation it was confirmed by the High Court in 1903. The sale in execution thereof took place on the 12th November, 1908, and confirmed on the 9th March, 1912, and the writ of delivery of possession was served on the 21st January, 1915. In the mean time the predecessor in interest of the defendants purchased this very property in execution of a simple money decree. The circumstances under which that decree was obtained have been described in the judgment of the Court below and it is unnecessary for me to refer to them. It is sufficient to say that the Court of the first instance has held that the decree was a simple money decree and that finding was not challenged before the lower appellate Court nor before us. Therefore, the question involved in this appeal resolves itself into a conflict between the two sales, one held in execution of a mortgage decree and another in execution of a simple money decree. The sale relied upon by the defendants took place in the year 1890 about two years after the mortgage decree was passed.

The learned Advocate for the appellant has conceded that in ordinary circumstances he would have had no answer to the suit, the plaintiff's title being obviously a paramount one. But he contends that the suit was barred by limitation as it was instituted more, than 12 years after the purchase. His main contention is that during the entire period, that is, since the purchase of the plaintiff up till the institution of the suit, the possession of the defendant was adverse to the plaintiff.

The first thing which we have to decide is as to which Article of the Limitation Act applies to this case. It is obvious that Article 138 has no application. That Article applies to a suit instituted by an auction-purchaser against a judgment-debtor. In my judgment it applies to a case in which there has been no delivery of possession by the executing Court as contemplated by Order XXI, rules 95 or 96, of the Civil Procedure Code. The Article, to my mind, which obviously applies to this case is Article 144, as this is a suit for possession of immoveable property or any interest therein not otherwise provided for in the Act. The period commences to run from the time when the possession of the defendant became adverse to the plaintiff. It is clear that no other Article of the Limitation Act applies to such a suit and, therefore, of necessity the Article that is applicable is Article 144. Having come to this conclusion, we have to see when the possession of the defendant became adverse. Was it when the plaintiffs purchased the property, or when the sale was confirmed, or was it when they went to take possession of the property armed with the writ issued by the Court?

The learned Advocate has contended that as the possession directed by the Court to be given to the auction-purchaser was only a symbolical one and he not being a party to the execution proceedings is not bound by that delivery of possession and that such a delivery of possession did not give a fresh start of limitation to the plaintiff.

The learned District Judge has noted conflict of decisions on account of a somewhat loose use of the expression ‘symbolical possession’ which he calls a horrid and meaningless phrase. No doubt confusions have arisen on account of the misunderstanding of the words ‘symbolical’ and ‘actual’ possession, words not used in the Civil Procedure Code. The confusion is not, however, due to these words being used in judicial decisions but on account of their misappreciation and misapplication. The Civil Procedure Code prescribes two modes of delivery of possession based upon the nature of the property concerned. The Code does not prescribe that in respect of a particular property there can be two modes of giving possession, either to a decree-holder or to an auction-purchaser, one ‘symbolical’ and the other ‘actual’. The relevant rules for an auction-purchaser are rules 95 and 96 of Order XXI of the Civil Procedure Code corresponding to sections 318 and 319 of the old Code. Similar provision for giving possession to the decree holder is contained in rules 35 and 36. These rules prescribe that if the property is in the occupation of the judgment-debtor or of some one on his behalf, etc., the possession shall be given, if necessary, by removing the judgment-debtor, etc. and placing the decree-holder or the auction-purchaser in occupation of the same. On the other hand if the property is of such a nature that the judgment-debtor cannot be in actual occupation of it—as for instance property in the possession of a tenant—the only mode of giving possession is by proclaiming on the spot that possession has been given to the decree-holder or auction-purchaser.

In some of the decisions of various High Courts the one mode of possession has been called “actual” and the other “symbolical”. None of the cases lay down that there is such a thing as actual or symbolical delivery of possession irrespective of the nature of the property to be delivered. When it is said that symbolical possession is not binding upon a third party but actual possession is, it is only meant that when a decree-holder or an auction-purchaser has been put in actual occupation of the property everybody else has been ousted from it; and consequently dispossessed. This is an obvious fact and not a question of law. On the other hand if the Court simply proclaims that the decree-holder or auction-purchaser has been given possession but on account of the nature of the property they have not been placed in physical occupation of the property itself, such a delivery of possession can be binding only upon those who are parties to those proceedings or on those who claim through them. The difference, as I have said, is due to the nature of the property and not on account of the difference in the nature of possession. The question will always be not what was the mode of delivery of possession but who has in fact been ousted by it.

Now in this case we have to see if the delivery of possession relied upon by the plaintiffs was of such a nature as to amount in the eyes of the law the ouster of the defendant from the property itself.

From the dates I have given in the earlier part of this judgment it will appear that the purchase by the predecessor in interest of the defendants was after the passing of the decree in the mortgage suit, and obviously the case is covered by the doctrine of lis pendens.

The complaint of the learned Advocate on behalf of the appellant that he was not a party to the mortgage suit has a simple answer. He could not have been a party to a suit which was finished before his purchase. I have already said that the decree was passed in 1888 and the purchase relied upon by the defendant was in the year 1890. Therefore, his position is no better than that of the mortgagor; he obtained the right, title and interest of the mortgagor subsequent to the passing of the mortgage decree and, therefore, he was bound by the decree, the sale and the delivery of possession.

Now when once the Court put the plaintiff's predecessor in interest in possession of the property and the defendant continued in possession of it in spite of this delivery of possession, it is then and then only that the possession of the defendant becomes adverse. The plaintiff could not have gone and taken possession of the property either at the sale or even after the confirmation of it unless the Court put him in possession, and, therefore, in my opinion the possession of the defendant was adverse from the date of the delivery of possession. The view of law I have taken is supported by the decisions of Janaki Nath Saha v. Baikantha Nath Ghattak and Harasit Golder v. Jaladhar Biswas. No doubt a contrary view was taken in the case of Narain Das v. Lalta Prashad. But with my respect to the learned Judges of the Allahabad High Court, I am of opinion, if I may say so, that the Calcutta cases were correctly decided and should be followed. This being the case, the suit was within time.

Appeal dismissed.