AYER RAVJI VASTA Vs. JOSHI GOPALJI KHIMJI
HIGH COURT OF GUJARAT
AYER RAVJI VASTA
JOSHI GOPALJI KHIMJI
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(1.) The facts out of which this appeal arises can be briefly stated as follows:-In a redemption suit by a mortgagor against the two mortgagees the appellant who was a tenant of the mortgagees was also joined as party but he did not file a written statement. A preliminary decree was passed by consent between the mortgagor and the mortgagees. In the final decree it was ordered that possession should be delivered to the mortgagor.
(2.) In the execution of that decree the appellant who was a tenant of the mortgagees gave an application praying to the Court that actual possession should not be given but only symbolical possession. In para 2 of his application he has stated as follows :
The plaintiff and defendants Nos. 1 and 2 have compromised the matter on 21 January 1956. I was not a party to that. I am tenant of defendants Nos. 1 and 2. So actual possession cannot legally be taken from me. But symbolical possession can be taken as provided in Order XXI Rule 36. So I submit that fact to Your Honour and I submit that I will also declare my objection when Nazir will come for taking actual possession from me. So it may be ordered that actual possession may not be handed over to him. So his case was that he was a tenant of defendants Nos. 1 and 2
(3.) the mortgagees and that he was not a party to the compromise between the plaintiff and the mortgagess. He therefore prayed that symbolical possession should be given to the plaintiff under Order 21 Rule 36 C.P. Code. The learned Sub Judge Bhuj who heard the application passed an order for symbolical possession holding that symbolical possession should be delivered under Order 21 Rule 36 and under Order 21 Rule 96 C.P.Code. In appeal the learned District Judge kutch ordered that actual possession should be delivered and not symbolical possession. The immovable property in question was a shop. Order 21 Rule 36 C.P.Code reads a follows :;
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