The plaintiff obtained a decree for possession of certain land. In execution he applied for delivery of possession under O. 21, R. 35 and delivery was ordered. The finding is that what was effected was no more than a formal delivery of possession. He waited for nearly 12 years, after that and then sued again. The question for decision—the defendant having been in possession both before and after the delivery for a total period of about 20 years—is whether the suit is barred by limitation. The District Munsif decreed the suit, but the District Judge held that it was time-barred, a conclusion in which Devadoss. J., concurred in second appeal. He dissented from Govind v. Venkata Sastrulu(1) and followed Govindasami Pillai v. Pethaperumal Chetty(2) which he considered was binding on him and certain rulings of the Bombay and Allahabad High Courts. The effect of these decisions is this—that, in cases where a decree-holder is bound to apply for actual, as opposed to symbolical possession, but obtains only the latter, the delivery of possession is a nullity and does not give rise to a fresh period of limitation.
Authority on the question is divided. The High Court of Calcutta has invariably taken a view directly opposed to that of the two Courts above referred to. And so has this High Court since the ruling reported in Kocherlakota Venkatakristna Row v. Vadrevu Venkappa(3) until a contrary opinion was expressed obiter in Govindasami Pillai v. Pethaperumal Chetty the controversy would seem to have been concluded by a ruling of the Privy Council in Sri Radha Krishna Chanderji v. Ram Bahadur which approved of Juggobundhu Mukerjee v. Ram Chunder Bysack. It is, no doubt, true that both of these were cases where the only delivery to which the decree-holders were entitled was symbolical but their Lordships of the Privy Council laid down a rule of general application to the effect that:
“symbolical possession availed to dispossess the defendants sufficiently because they were parties to the proceedings in which it was ordered and given.”
The Bombay High Court considered this rule in Mahadevappa Dundappa v. Bhima Doddapa(4) and expressed the opinion that the view previously taken by that Court might, when the occasion arose, have to be re-considered. In Jobeda Khatun v. Tulsi(5) the rule laid down by the Privy Council was restated and it was followed by Odgers, J., in V. Ranganatha Aiyar v. Srinivasa Aiyangar(6). In Pratap Udai Nath Sahi Deo v. Sunderbans Koer(7) Adami, J., of the Patna High Court followed the Calcutta and Madras decisions. Daniels, J., of the Allahabad High Court in Harpal Kurmi v. Mohan Kurmi(8) held that, in a case, where the warrant
“purported to give actual possession, which was the appropriate method of relief though in the sequel it proved that the procedure adopted was not effective,”
there was actual delivery, which was sufficient to interrupt adverse possession. He remarked:—
“It would be destructive of all respect for law and authority of the Court if it were held in such cases (i.e., cases in which the judgment-debtor stops away at the time of delivery and quietly resumes possession later) the judgment-debtor could treat the delivery of possession as a nullity and claim to have been in adverse possession from the date of his original entry.”
Only one other case need be referred to, Harbhagwan v. Taja(9) in which Jai Lal, J., held that the delivery of symbolical possession
“even erroneously amounts to delivery of actual possession so far as the judgment-debtor and his representatives are concerned.”
He added:—
“It is obvious that a person, who is a party to certain legal proceedings is not entitled to question the legality of procedure adopted in such proceedings except in the manner authorised by law and that is by appeal—if he allows wrong procedure to be followed without effective protest he must be deemed to have acquiesced in it and therefore to be bound by it. The general principle of estoppel similar to res judicata will apply to a case like this.”
It is clear that the balance of authority is overwhelmingly in favour of the view, that in a case like this a judgment-debtor, who is a party to the execution proceedings and is bound by the decree is not entitled to deny that he was dispossessed, even though he was not actually evicted. We think that the rule laid down by the Privy Council is so worded as to be of general application and that we must follow it. In the result the Letters Patent Appeal must be allowed. The decree of the Munsif is restored with costs throughout.
K.V.SAppeal allowed.