VINOD K.SHARMA,J - (1.) THE present revision petition has been filed against the order dated 8.9.2006 passed by the learned Addl. District Judge, Barnala vide which the learned executing Court after rejecting the preliminary objection of the petitioner with regard to the maintainability of the execution application after the decree has been satisfied has ordered the recording of the statement of the revenue officer.
(2.) THE learned counsel for the petitioner contends that under the provisions of Order 21 Rule 35 CPC once possession has been delivered and accepted by the decree-holder, the Court has no jurisdiction to entertain the second application for possession. The learned counsel for the petitioner further contends that even under Section 144 of CPC, the possession cannot be restored to a party once the decree has been satisfied. The contention of the learned counsel for the petitioner is that, though these contentions have been noticed by the learned Executing Court but no order thereon has been passed.
(3.) THE learned Sr. counsel for the petitioner further contends that in view of the impugned order the objections have already attained finality as they already stand rejected by way of the impugned order. The filing of reply is thus empty formality. The learned counsel for the petitioner in support of his contentions placed reliance on the judgment reported as Shew Bux Mohata and another v. Bengal Breweries Ltd. and others, AIR 1961 Supreme Court 137 wherein it has been held as under :- "...... It is open to the decree-holder to accept delivery of possession under that rule without actual removal of the person in possession. If he does that, then he cannot later say that he has not been given that possession to which he was entitled under the law. This is what happened in this case. The decree-holders in the present case, of their own accepted delivery of possession with defendant No. 4 remaining on the premises with their permission. They granted a receipt acknowledging full delivery of possession. They permitted the execution case to be dismissed on September 8, 1949, on the basis that full possession had been delivered to them by defendant No. 4. The fact that they put their guards on the premises as mentioned in the Nazir's return would also show that they had obtained full possession. It was open to the decree-holders to accept such possession. Having once done so, they are bound to the position that the decree has been fully executed, from which it follows, that it cannot be executed anymore. In the case of Jagdish Nath Roy v. Nafar Chandra Parmanik, 35 Cal. WN 12 : AIR 1931 Cal. 427, an exactly similar thing had happened and it was held that the decree was not capable of further execution. It was there said at p. 15 (of Cal WN) : (at p. 429 of AIR) : "The case, therefore, seems to me to be one of those cases in which a decree- holder having armed himself with a decree for khas possession executes that decree in the first instance by obtaining symbolic possession only with one ulterior object of his own, and thereafter subsequently and as a second instalment asks for khas possession. The question is whether such a course is permissible under the law. I am of opinion that it is not." ;