AIR 1961 SUPREME COURT 137

Supreme Court Of India

(From Calcutta)*

Hon'ble Judge(s): S. J. Imam, A. K. Sarkar, Raghubar Dayal , JJJ

(A) Civil P.C. (5 of 1908) , O.41 R.20, O.1 R.10, S.146— Execution appeal pending before S. C. - Subject-matter of appeal mortgaged by judgment-debtor - Mortgagee obtaining mortgage decree and executing same subsequent to filing of execution appeal is S. C. - Auction-purchaser can be brought on record of appeal before S. C. (Para 19) (B) Civil P.C. (5 of 1908) , O.21 R.35— Execution - Delivery of possession to decree-holder - Decree-holder accepting possession, with defendant remaining on premises - Decree fully satisfied - It cannot again be executed. @page-SC138 Under O. 21, R. 35 a person in possession and bound by the decree has to be removed only if necessary, that is to say ,if necessary to give the decree-holder the possession he is entitled to and asks for. But 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. Where the decree-holders of their own accepted delivery of possession with defendant remaining on the premises with their permission, and they granted a receipt acknowledging full delivery of possession, and permitted t....