Shew Bux Mohata and Others v. Bengal Breweries Ltd. and Others

Judgment

Narain Das TIJ• Stat• of V.tt,ar Pradesh Raglsubar Dayal j. Sr.ptember 15. [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 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 permissible-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 possession 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 Nirmala Sundari Dassi whereby the purchaser from the appelt96o !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 record of the appeal. 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 Subordinate 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 decreeholders' 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. [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 put them m possess10n. v Certain persons called Mohatas whose interests are Buzgal Breweries represented by the appellants in the present appeal, Ltd. & Others . claimed that Sukeshwari ·had only a life interest in the lands which on her death had vested in thrm and Sarkar ]. the executors had therefore no right to grant the leases.

They filed a suit against the executors and the tenants on September 15, 1954, in the Court of a Subordinate Judge at Alipo{e for a decree declaring that the defendants had no right to possess the lands and for khas possess'ion by ev.icting the defendants from the lands by removing the structures, if any, put ' up by them there. On March 30, 1948, the learned · Subordinate Judge passed a decree for khas possession in favour of the Mohatas and gave the defendants six months time to remove the structures put up on the land. It is the execution of this decree with which the appeal is concerned. · Defenda1ft No. 3 appealed from this decree and that appeal succeeded for reasons which do not appear on the record. It is not necessary to refer to defendant No. 3 further as we are not concerned in this appeal with him. It may however be stated that he was in possession of premises No. 26 and no applica. tion for execution appears to have been made against Wm.

The executor defend an ts also a.ppealed from tlie decree. The other two tenants, defendants Nos. 4 and 5, did not appeal. Of these tenants we are concerned only with defendant No. 4, the Bengal Breweries Ltd., a company carrying on business as distillers. It was in possession of premises No. 27, on which it bad built a factory for distilling liquor and yeast.. Defendant No. 5 was in possession of premises No. 28 on which stood some temples. On September 22, 1948, the Mohatas, the decree. holders, filed an application in the Court of the learned Subordinate Judge for execution of the decree against defendants Nos. I, 2, 4, 5 & 6. On September 25, the ]earned Subordinate Judge passed an order in execution I issuing a writ for delivery of possession of premises 0 ·Nos. 27 and 28 to the decree-holders by removing 51,,w u-::;Mohata any person bound by the decree who refused to vacate & Othm the same and· fixed November 22 'for making the return to the writ. On September 28, the decree.

Bengal J.hcwe>·ies holders applied to the lea.med Subordinate Judge for Lid. & Othm obtaining help from the police for' executing the Sarhar J decree. On September 29, tho executor defendants applied for afshort stay of execution to enable them to obtain a stay order from the High Court. Defendant No. 4 also itself made an application for staying the execution for two months to enable it to come to an arrangement with the decree-holders in the meantime. On the decree-holders assuring the Court that they would not execute the decree till 2 p. m. of the next day these two petitions by the judgment-debtors were adjourned till September 30. On September 30, 1948, the two petitions for stay were taken up for bearing by the learned Subordinate Judge. With regard to the petftion by the executor defendants, he observed that he had no power to stay execution in view of 0. 41, r. 5, of the Code of Civil Procedure and thereupon· di&missed that petition. The petition for time by defendant No. 4 was also dismissed but in n·spect of it the following observation appears in the order:

"The decree-holders undertake that they will allow the company to carry on normal business for six weeks from now by which time the company will settle matter with the decreehulders ". Thereafter on the same day the decreehulders · de.posited in Court, the necessary costs for police help for executing the decree and the learned Subordinate Judge requested the police tu render the necessary help on October 1, 1948. It also appears th;;,t subsequently on the same day defendant, No. 4 filed another petition for stay of execution and.also a petition under s. 47 of the Code objecting tu the execution, alleging that there was a tentative arrange. ment between it and the decree-holders that it would pay l'ts. 150 as monthly rent and it need nut file any bi_.. peal to challenge the validity of the decree. The decree-holders opposed these petitions by defendant G84 Sl:PRE111E CO'CRT REPORTS [1961] 196° No. 4.

Tho learned Subordinate J udgc ma•le no order (11\ thmu but adjourned them to Xovembcr 11, l!J48, Shew Liu• Mvhuta r l th , d , & 01,,.,, 11.s o ie t at t e matter require 1nvest1gat10n. On October 1, 1948, the i\ azir of the Court proceed- IJe•gal llmvmcs ed to prt•miseg Nos. 27 and 28 with certain police Ltd. & 011,,,, ollicers to execute the decree in terms of the writ. Ho found the gate of premises ~o. 27 closed but later the Su•ka• f. manager of defendant Xo. 4 opened it at his request. Wha.t happened therm\fter appears from the return of the Xe.zir which is in the following words: "Wo then entered into the factory house aud delivered possession in each of the buildings at about I0-30 e.. m.

Before removal of the furniture and other movabl~s from those buildings there was an amicable settlement between the decree-holders and the manager of the factory that the factory will run its normal business e.s before for 6 weeks and in the mea11time the executive body of the factory will make settlement with th~ r!P.cree-holdern and some of the decree holders' men will remain th('re as guards". lt is admitted that the decreA- hold1~rn' guards were ther('<t ft.er posted on the premises. The Xazir then µrocrnded to prcmise8 ?\o. 28 and the return also Hhow8 I hat he delivered posHessiuu of these premisPs to the decree-holders. Tho relevant portion of the return is iu the8c words : "Then we procccdf•d towards the premises X o. 28 (Old X o. 8) consisting of 2 ll'mplc8 and found that the priest of the temple wws present. He amic:~bly came out of the compound a11d possession was delivered of the temples, hrndH, tanks and other plots mentioned in-the writ."

After possession had b1!en dclivernd, the decrneholders executed on the same day a receipt in o.cknowledgmeut of possession h:wing been received by them. That receipt is in these Lerm•: " Heceivcd from Sri Bhabu.tarnn lfanerjee, ::\' aib Nazir, District Judge's Court, Alipore, 24.Parganas, delivery of posseRsion of premises :'\os. 7 i<11d 8 (formerly .Nus. 27 and 28) Dum Oum Cossipure Road in the above execution case, this day at 10-30 a.m. including all buildings, tanks, gardens and tcm pies, etc., all these mentioned in the writ in its schedule." The receipt by mistake describes the premises as i96o "formerly" Nos. 27 and 28 for the premises then bore «h 8 M 1 1 ., ew ux o ui a these numbers. er, Others It appears that at 11-15 a. m. on October l, 1948, the executor defendants moved the High CourL for a Bengal B"w"i" stay of execution in the appeal filed by them from the Ltd. ,r,, Others decree. The High Court directed an ad interim stay.

After this order had been made the executor defend- Sarkar J. ants moved the learned Subordinate Judge on the same day for conseq uen tie.I orders on the strength of the stay of execution granted by the High Court. The learned Subordinate ,Judge thereupon made the following order : " 111 the special circumstances recall the writ provisionally. To 5th November, 1948, for fresh consideration if forinal stay order is not received in the meantime". This order was passed on the verbal representation of the lawyers for the executor defendants that the High Court had directed the stay of execution, for there had not been time for the High Court's order to be formally drawn up and produoed before the learned Subordinate Judge. On November 22, 1948, which was the day fixed for making the return to the execution of the writ, the following order appears to have been passed by the learned Subordinate Judge in the execution case: "Possession delivered.

OnA third part.y has filed an application under Or. 21, r. 100, C.P.C. Let the execution case be put up after the disposal of Misc. Casfl No. 13 of 1948.'" The Miscellaneous Caso No. 13 of 1948 was the one started on t.he petition of the third party under Or. 21, r. 100 of the Code, objecting to his removal by the execution. This third party was one Bhairab Tewari and he presumably was claiming some right in premises No. 28 for there was no question of his making any claim to pl'emises Xo. 27 which were exclusively in the possession of defendant No. 4. The ad interim stay issued by the High Court on October 1,. 1948, in the appeal filed by the executor defendants, came up for final hearing and re8ulted in thfl following order on January 21, 1949. " If anything is due on account of costs which ()8() Sl'.PREME COCRT REPORTS [1961] i96o has not been paid, thftt. a.mount will be depositP.d in ,. r-u 1 the Court heluw by defendant :\" o. 4 (i.e., .Mr. Son's ·"'"~.';~·;";,;'"'"client) within :1 month from to rlay, and then three monl.h's time from to-da.y will he gh·en to him to lle,,,;al llmccm.' rl'!llil\'l' t lw machinerirH and varnte that portion of 1.

1•1 "' O•hn; the l:tnd in suit 1,·hich he i~ occupying ns a lessee and which he is using now :1H a brewery. In default of the dt·.posit being made and al•o i11 default of vacating tho prPmi><es ns dirrctcd ahoV<., this Rulo will stand discharged. We do not stn.y delivel'} of po8scssion in respect of nnv otlwr item in which dr.fonda.nt No. 4 or Xo. I or an:r other defendant save and except dcfen1fant No. 3 is intrrostcd." The appearances of the partieH recorded in this order do not show any o.pp~aranee having been made in connection with it by defendant. No. 4. It does not. app~ftr fr1.m the records what other proceedings, if nny, were ti1ken in the appeal by the ex(•cutor defendn,nts l1nl it is ngreed that that apveal was dismissed 0u :"rptcmber 8, 1954. DefeuJant :\ o. 4 J id not vacate at the end of the t.hree months mentioned in the order of .January 21, W49. The parties then took proceedings in Criminal Courts under s.

144 of the Code of Criminal Procedure a.nd other c01rnectPd provisions. It is not necessary t0 rnfer to these proceedings and it iH enongh• to state thn.t thl'y did not :dl'eet the possession of premises ~o. 27 by dcfonda.nt Xo. 4, who continued in posscssio:1 till tho United Bank of India. Ltd. took over possession as hereinafter stated. On September 8, 1949, the following order was made by tlie learned Subordinate Judge in the execution case: " Decree-holder takes no other stops. Possession so far as regards tho Bengal Broweries a.re concerned, delivered. Ordered that the ex1,cution ca.so be dismissed on part satisfaction." Ou September 27, 1951, the decree-holders ma.de a. . 687 fresh application for execution aga.inst defendant No. r96o 4 alone by evicting it from premises No. 27. Defend- Sh B--M h 1 ant No. 4 put in an objection against the execution ew & ~~her; a a under s.

4 7 of the Code alleging that so far as it was concerned, the decree had been fully executed as a Bengal Breweries result of the earlier execution proceedings which Ltd. '" Others terminated by the onl!Jr of September 8, 1949, and I I Sarkar J. that further execution was not permissible in aw. t is out of this objection that the present appeal has arisen and the question for decision is whether the objection to the execution so mised, is sound. As earlier stated, the learned Subordinate Judge dismissed the objection to the execution but on appeal the High Court set aside his order and dismissed the petition for execution. The High Court granted a certificate for an appeal to this Court on June 15, 1956 and on August 3, 1956, the High Court passed an order directing that the appeal be admitted. On August 11, 1960, an order was made by this Court adding three persons named Moo! Chand Sethia, Tola Ram Sethia and Hulas Chand Bothra as parties respondents to this appeal.

The order however provided that the appellants decree-holders would have a right to object· to the locus standi of these persons in the appeal. At the hearing before us only these added parties appeared . to contest the appeal. The appellants have raised a preliminary objection that the added parties have.no locus standi and cannot be heard in the appeal. It appears that defendant No. 4 had executed three successive mortgages oJ premises No. 27 with all structures and appurtenances, to a bank called the Comilla Banking Corporation Ltd. The first of these mortgages had been executed on May 25, 1944, and the other two mortgages had been executed after the suit in ejectai.ent had been filed but before that suit had been decreed. The assets of the Comilla Banking Corporation Ltd. became subsequently vested in the United Bank Limited. Some time in 1953, the United Bank filed a suit for enforcement of the mortgages.

On May 30, 1955, a final mortgage decree was passed 88 SUPREME COCRT REPORTS [1961] ' 960 in favour of the United Bank. On July 20, 1956, Shrw n .. x MaJ.ata the mortgaged properties were put up to auction and & 011.m purchased by the United Bank. On March 1, 1958, the mortgage sale was confirmed and subsequently DrnK•I Drtimirs the United Bank was put in possession of premises I.td. r- 01""'' Xo. 27. On July 13, 1960, the United Bank convey. Sarkar 1. ed premises No. 27 along with all structures and appurtenances and all its right, title and interest therein to these added respondents. It is by virtue of this conveyance that the added respondents obtain. ed the order from this Court dated August 11, 1960, mo.king them parties to the appeal. Defendant No. 4, the Bengal Breweries Ltd., is now in liquidation and it has not entered appearance to this appeal nor takon · any steps to defend it. It appears to us that tho added respondents were properly brought on record.

The decision of this Court in Saila Bala Dassi v. Nirmala Sundari Dassi (1), supports that view. There it was held that an appeal is a proceeding within the meaning of s. 146 of the Code and the right to file an appeal carried with it the right to continue an appeal which had been filed by tho person under whom the appellant claimed and on this basis a purchaser from the appellant under n. purchase made prior to the appeal was brought on the record of the n.ppeal. We think that on the same principle the added rrspondents in the case bofore us were properly brought on the record. lt iH not in dispute that if the decrco waH .once cxccntnd againRt dcfPndo.nt No. 4 in full, then it, cannot be exccutr.d over again regarding premises l'i'o. 27. 1 n other words, if possession ho.d been fully delivered to the decree.hol<lers in execution of tho decree on Octoher I, l!J48, tho decree muHt have been wholly so.fri!ie<l and nothing remains of it for enforcement by further exccut.ion.

The tlccrco was for khas possession and un<lcr Or. 21, r. 3:i, of this Code in execution of it possession of the propPrty concerned had to be delivered to the decree-holders, if necessary, by removing any person bound by the <lecree who refused to vD.catc tho property. The records of the proceedings (1) {1958] S.C.R. 1287. show that such possession was delivered. Defendant '960 No. 4 was the party in possession and bound by the Sh B-M h. t d f d N ew ux o a a decree. With regard to en ant , t e or er made on September 8, 1949, states, "Possession so far as regards the Bengal Breweries are concerned, deli- Bengal Breweries vered." This is an order binding on the decree-holders. Ltd. & Others It has not been said that this order was wrong nor Sarkar ]. any, attempt made at any time to ave 1t set as1 e or to challenge its correctness in any manner.

The same is the position with regard to the order of November 22, 1948, recording on the N azir's return that posses• sion had been delivered in terms of the writ. The order of September 9, 1949, no doubt further states, "Ordered that the execution case be dismissed on part satisfaction". The words "part satisfaction" in this order, however clearly do not refer to part satisfaction. as against defendant No. 4, the Bengal Breweries, for the order expressly states, "possession so far as regards the Bengal Breweries a.re concerned, delivered." The decree had therefore been satisfied in full as against the Bengal Breweries Ltd. and consequently as regards premises No. 27 in its possession .. Even the learned Subordinate Judge who held the execution maintainable found that" the decree-holders had no doubt previously got possession".

Notwithstanding this, the learned Subordinate Judge decided · that the decree could still be executed as he took the view that at the. hearing before the High Court on January 21, 1949, defendant No. 4 "must have ignored the delivery of possession by the Na.ib Nazir and he cannot now be heard to say that the delivery of possession by the Na.ib Nazir was legal and valid". For reasons to be stated later, we are unable to agree with this view. It is true that tho Nazir's return showed that defendant No. 4 had not been bodily removed .. But the same return also shows that it.had not been so removed because of certain·arrangement arrived at between it and the decree-holders and as the decree-holders bad not required the removal of defendant No. 4 from the premises. Now under Or. 21, r.

35 a. person in possession and bound by the decree has to be removed SUPREME C'OVRT REPORTS [l!l61] i96o only if neccRsa.ry, tha.t is to sa.y, if necessary to givo Sh 1,-H 1 1 the decree-holder the pos!;e.ssion ho is entitled to and •w .s. ~:.;,;'" "a.sks for. It would not be necesHa.ry to remove the person in possession if the decree-holder doos not want Bengal Dreu·mu such removal. It is open to tho decree-holder to Ltd. 6- Others SarAar ]. accept delivery of possession under that rule without actual removal of the person in poss~ssion. If he docs that, then ho cannot later say that he has not been given that possession to which ho was entitk<l under the law. This is what happened in this ca.so. Tho decree-holders in the present ca.so, of their own accepted delivery of possession with defoudant No. 4 remaining on the premises with their permission. They granted a receipt a.cknow !edging full delivery of possession.

They permitted tho cxeeution case to be dismiBB- ed on September 8, 1949, on the basis that full possession had been drlivcrcd to them by defendant No. 4. 'l'hc fa.ct that they put their guards on the premises as me11tioned in. the N azir's return would a.lso show tha.t they had obtained full possession. It was open to tho decree-holders to accept such possession. Having once done so, they a.re bound t-0 the position that the decree has been fully executed, from which it follows 'that it cannot be executed any more. In the case of Maharaju Jagadish Nath Roy v. Nafur Chandra Parmanik (') an exactly similar thing had happened and it was held that tho decree was not ca.pa.ble of further execution. - It was them said at p. 15, "Tho case, therefore, seemH to me to be one of those cases in which a decree-holder having armed himself with a decree for khas poRscssion oxecutos that decree in the first instance by obtaining symbolical possession only with somo ulterior object of his own, and thereafwr subsequently and as a second instalment asks for kha.s possession.

Tho question is whether such a. course is permissible under the law. I am of opinion that it is not". We entirely agree with the view tha.t was thero expressed. The lea.med Solicitor-Gcm•rnl appearing for tho appellants contended that the order of September 30, (1) (1930) 35 C.W.N. 12. 1948, shows that the decree-holders had undertaken to allow defendant No. 4 to carry on normal business Shew Bu• Mahala for six weeks and therefore, on October 1, 1948, when they proceeded to execute the .decree, they were not seeking to execute it in full by removing defendant Bengal Breweri No .. 4 from possession. He said that the execution on Ltd. "" Others October 1, 1948, wa.s therefore not complete as defenda.nt No. 4 ha.d not been removed pursuant to the undertaking given on September 29, 1948.

We are unable to read the order made on September 8, 1949, or the N azir's return and the receipt granted by the decree-holders in a. manner contrary to the plain meaning of the words used in them, because of the undertaking. Further, it is not the case of the decreeholders that that order, the N azir's return or the receipt is incorrect or had come into existence through any misapprehension. The legality or correctness of none of these was ever nor is now challenged. The order of September 8, 1949, is binding on the decreeholders and they cannot now go behind its terms. For the same reason, neither ca.ii they go behind tho order of November 22, 1948, recording in terms of t-he Na.zir's return that possession had been delivered . . It further seems to us that if the undertaking meant that defendant No. 4 was ·not to be removed from possession, then the execution would have been stay~d, which it was not, for the only way in which it was possible to execute the decree was by removal of defendant No. 4 from possession as it was alone in actual posses11ion, the executor defendants claiming only rent from it as landlord.

Then again the order in which the undertaking appears, also st.ates that the stay of execution against defendant No. 4 as asked by it, was refused. Besides this, the order sheet shows that immediately after the order stating the undc1·- taking had been made another order was made on the same day acknowledging receipt from the decrceholders of the costs of the police for helping the execution and directing that the police might be approached to render any help•necessary on October 1, 1948, at the time of the execution of the decree. Tlie only possible way to reconcile all the various orders, tho return Sarka.r ]. SlJPHE:.'\lE COURT REPOBTS [ 1961 J and the receipt, is to proceed on thC' basis tha.t by the IJ-.1 , undertaking tho decree-holdors agreed tha.t after they fftW &IX .~ 0114lti h .,_ Olhm ad ta.knn possosR1on, they would a.llow defendant No. 4 to continue its business on tho premises for six BwK•I n"w"i" wooks with their permission.

Such undertaking doos Lid. & Othm not show that it wa.s not intended to remove defen. Sarkar J. da.nt No, 4 from possession. The lea.med Solicitor-Genera.I also contendod that the fact that the undertaking wn.s confined only to a p_eriod of six weeks would show that the decree. holders were not permitt~ng defendant No. 4 to continue in posseBBion after they had obtained possession from it, for then no period would have been mentioned. We a.re unable to accept this argument for there is nothing to prevent the decree.holders after they ha.d obtained possession undor the decree, to grant permission to defendant No. 4 to continue in pos~«ossion for any period they liked; such permission could be for six wooks or for any longer or shorter period as the decree-holders thought fit.

The learned Solicitor.Gennral then contended that the case was ooo where the decree had been partly executed on one day and execution had been stopped on that day for want of time or other reason, with the object of continuing it on a subseqm•nt day. In such a. case, he sa.id, there would be nothing to prevent subsequent execution of the Hamo decree. lt does not seem to us that the present case is of this nature, Tho orders and documents oo the record a.re against this view. The further execution is not in the course of the earlier execution but is a. fresh execution. Tho interrruption in the execution was for over two yea.rs. Apart from other things, tho placing of their own guards on the premises by thti decree-holders could only be on the basis that they had ta.kon posHossion. 'fhe lea.med Solicitor-General said that the guards had been put there with the permillllion of defendant Xo. 4. The Nazir's return is entirely against such a. view.

Indeed, it is difficult to sec why defendant ~o. 4 would ptirmit the decree-holders' guards on tho premises unless it. was on tho ha.sis that possession had been taken by the dccroo-holders and tho guards were there to protect their possession. The guards I960 were subsequently removed but it does not appear Shew n-::x-Mohata from the records in what circumstances they were o;. Others removed. Nor do we think that the order of October 1, 1948, Bengal B"weries assists the de~ree-holders. That order directed ·the Ltd. "' Others writ to be recalled provisionally. The order was Sarkar J. wholly infructuous for the writ had earlier been duly executed. The learned Subordinate Judge himself came to that finding. This, as we have said, is also clear from the records of the execution case. The writ could not be recalled after it had been executed fully. Nor does the order establish that the· decree had been executed in part only.

The writ was not in fact recalled before the decree had been executed in full. The order of September 8, 1949, makes it impossible to hold that the writ was recalled after it had been executed in part only. The other argument advanced by the learned Solicitor-General was based on the order of the High Court dated January 21, 1949. It was said that that order ipdicated that the decree had not been executed by removing defendant No. 4 from possession because it, in substance, was an order for a stay of execution of the decree. It was also· said that the order must have been on the baRis of a representation by defen. dant No. 4 and a finding that the decree had not been executed by removing defendant No. 4 from 'possession. The contention was that that finding and representation was binding on defendant No. 4 and therefore on the added respondents and further that having obtained the order on the basis that it had not been ousted from possession in execution, defendant No. 4 and hence the added respondents, could not be permitted to approbate and reprobate that position and now be heard to say that the decree had been executed in full.

We think that both these contentions are ill-founded. Tbe order is far from clear. We have already pointed out that there is nothing in it to show that defendant No. 4 had asked for 8.ny. stay. Defendant No. 4 had not appealed from t~ ·decree. It was not [1961] entitled to a sta.y of the execution of the decree. It wa.s "' . , n-·r , 1 in possession of tho prt•rnise.q with the permission of u.T " """ 0 h d h 11 T h--' & 0 ,1,,,, t e ecrneo < ers. ho permt•ston ..u imtta.lly hecn for six weeks which period had expired. [t. was ex11cn- Benga1 B"w"i" tor dcfondants who had obtained a.n ad interim stay Ltd. "'Othm frorn the High Court on October I, 1948. This orrl~r wa.s infruotuous beca.11se fort.yfive minutes prior t.o the sa,Jtar 1. time tha.t it wa.s made, the decree ha.d been executed in full. In those circumsta.nces the Court on January 21, 1949, ma.y he a.t the request of defenda.nt No. 4, gave it three months' time to va.ca.te the premises. The request, if a11y, by defendant No. 4 docs not involve a representation tha.t the decree had not been oxecutfld in full.

It rnay, at most; mean tha.t the six weeks' permission initially gra.nted by the decreeholders might be further extended. With regard to the other contention, namely, that the order of January 21, l!l49, a.mounted to a finding tha.t the decree ha.d not heen 1ixec11ted in full, we ha.ve to point out that no such finding appears on the face of it. The order was made on an interlocutory proceeding and wa.s only in a.id of tho final decision in the appeal. The proc1•ecling in which the order was. made did not involve a decision of the issue whether the decree had earlier been executed in full. No finding on such an issue ca.n therefore be impliPrl in the order. This ordor doe~ not in our view in a.ny wa.y prevent the a.ddcd respondents from contending that the decree ha.d been executed in full. In the rrsult. this appeRI fo.ilR and it is dismissed. W c do not think it fit to tnl\kP- any order as to costs. Appeal dismissed.