LexSHEW BUX MOHATA AND OTHERS versus BENGAL BREWERIES LTD. AND OTHERS
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Narain Das v. TIJ• Stat• of V.tt,ar Pradesh Raglsubar Dayal j. Sr.ptember 15. 680 SUPREME COURT REPORTS [1961] judgment of a. single Judge of a. High C'ourt bees.use such an a.ppea.l lies with a certifica.te gra.nted under Art. 132. We therefore hold tha.t the present a.ppca.I does not lie to this Court and that it liPs to the High Court of Jndica.ture a.t Allahe.ba.d. We therefore direct tba.t the memora.ndum of appea.l be returned for presentation to the proper Court. .Appeal incompetent. lSHEW BUX MOHATA AND OTHERS v. BENGAL BREWERIES LTD. AND OTHERS (JAFER IMAM, A. K. SARKAR e.nd RAGHUBAR DAYAL, JJ.) Execution proceedings-Delivery of possession acknowledged- Execution case dismissed-If f11rther execution proceeding permissi- ble-Purchaser of rest.ondent's interest-Whether could be added as party-Code of Civtl Proced1ire, 1908 (5 of 1908), 0. 21, r. 35, s. 146. The appellant decree-holders in an execution proceeding accepted delivery o! possession and granted a receipt to the Nazir o! the Court acknowledging lull delivery o! possession to 'them but allowed the respondents, Bengal Breweries, to remain in possession with their permission. The appellant also permitted the execution case to be dismissed on the basis that lull posses- sion had been delivered to them by the respondents. Sometime thereafter the appellant made a fresh application for execution against the respondent, for eviction which was resisted under . s. 47 of the Civil Procedure Code alleging that so !ar as they were concerned, the decree had been fully executed as a result of the earlier execution proceeding which had terminated, and that further execution was not permissible in law. Held, that it is open to the decree-holder to accept delivery o! possession under 0. 21, r. 35, o! the Code o! Civil Procedure without actual removal o! the person in possession. II he does that then he is bound to the position that the decree has been fully executed, and it cannot be executed any more. Held, further, that on the principle in Soila Bala Dassi v. J _, 1 S.C.R. SUPREME COURT REPORTS 681 Nirmala Sundari Dassi whereby the purchaser from the appel- t96o !ant under a purchase made prior to the appeal was brought on - the record of the appeal, a purchaser from the respondent under Sh•w Bux Mohata a conveyance made prior to the appeal could be brought on the & Others record of the appeal. v. Saila Bala Dassi v. Nirmala Sundari Dassi, [1958) S.C.R. Bengal Breweries 1287, followed. . Ltd. & Othm Maharaja ]agadish Nath Roy v. Najar Chandra Parainanik, (1930) 35 C.W.N. 12, approved. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 58 of 1958. Appeal from the Judgment and docrce dated April 5, 1955, of the Calcutta High Court in Appeal from Original Order No. 206 of 1953, arising out of the judgment and order dated May 20, 1953, of the Fourth Additional Sub-Judge,· 24 Parganas at Alipore in Misc. Case No. 15 of 1951. G. K. Daphtary, Solicitor-General of India, 0. B. Aggarwala and Sukumar Ghose, for the appellants. H. N. Sanyal, Additional Solicitor~General of India and R. 0. Datta, for the respondents Nos. 3 and 4. 1960. Septomber 15. The Judgment of the Court was delivored by · SARKAR J.-This appeal arises out of an execution Sarkar J. proceeding. It is filed by the decree-holders and is directed against the judgment of the.High Court at Calcutta setting aside the order of a learned Subordi- nate Judge at Ali pore dismissing the objection of a judgment-debtor to the execution. The High Court held that the decree having· earlier been executed in full, the present proceedings for its execution were incompetent and thereupon dismissed· the decree- holders' petition for execution. The question that arises is whether the decree had earlier been executed in full. The facts appear to have been as follows :-One Sukeshwari died sometime prior to 1944 possessed of three plots of land which at all material times, bore premises Nos. 26, 27 and 28, Dum Dum Cossipore Road, in the outskirts of Calcutta. She left a will of which defendants Nos. 1, 2 and 6 were the executors. 682 SUPREME COURT REPORTS [1961] z96o The executors granted leases of these differe;1t plots of Sh B-,1 h 1 land to defendants Nos. 3, 4 and 5 respectively and ew ux.11oaa • . & Others put them m possess10n. v Certain persons called Mohatas whose interests are Buzgal Breweries represented by the app
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