Code of Civil Procedure, 1908 (CPC)
Actual and Symbolic Possession Distinguished
A decree-holder who has won possession of immovable property does not always get the keys. Whether he does depends on who is in occupation. Under Order XXI Rule 35 of the Code of Civil Procedure, 1908, where the occupant is bound by the decree, he is removed and the decree-holder is put in actual or khas possession. Under Rule 36, where the property is in the occupancy of a tenant or other person entitled to occupy it who is not bound by the decree, only symbolic possession is delivered, by affixing an order and proclaiming it. These notes compare the two.
Delivery by removal, and delivery by proclamation
1. The Two Rules
§ Order XXI Rule 35, CPC 1908 (in substance) (1) Where a decree is for the delivery of any immovable property, possession shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. (2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree. (3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession. |
§ Order XXI Rule 36, CPC 1908 Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property. |
2. The Test That Decides Which Applies
§ A single question: is the occupant bound by the decree? • The judgment-debtor himself is bound. Actual possession is delivered under Rule 35, and the court may break open a lock or door under Rule 35(3). • A person claiming through the judgment-debtor, or otherwise bound by the decree, is in the same position. • A transferee pendente lite is bound. Section 52 of the Transfer of Property Act, 1882 makes a transfer during the pendency of the suit subject to the decree, so such a transferee may be removed under Rule 35. • A tenant or other person entitled to occupy the property who is not bound by the decree cannot be dispossessed in that execution. He was never before the court and his rights were never decided. Only symbolic possession under Rule 36 can be delivered. • The reason. A court cannot take away by execution a right it has not adjudicated. Symbolic delivery gives the decree-holder the legal possession and puts the occupant on notice of the change of title. |
3. The Two Compared
Basis | Actual or khas possession, R. 35 | Symbolic possession, R. 36 |
|---|---|---|
When it is given | Where the property is with the judgment-debtor or a person bound by the decree | Where it is in the occupancy of a tenant or other person entitled to occupy, not bound by the decree |
What the officer does | Delivers possession, removing the occupant if he refuses to vacate | Affixes a copy of the warrant on the property and proclaims the substance of the decree by beat of drum |
Force | R. 35(3): locks and bolts may be removed and doors broken open, after reasonable warning | None; nobody is removed |
Who ends up in physical possession | The decree-holder | The occupant continues, and the decree-holder has legal possession only |
Effect on the occupant | He is dispossessed | He is put on notice; his own rights are unaffected until decided against him |
Also used for | The ordinary case of delivery under a decree for possession | R. 35(2): a decree for JOINT possession is delivered in the same manner |
Effect on limitation | Delivery is complete; the decree is satisfied | It is delivery in law, and the decree is satisfied, though the decree-holder may need further proceedings to displace the occupant |
4. When the Occupant Resists
§ Order XXI Rules 97 to 101 • Rule 97. Where the holder of a decree for possession is resisted or obstructed by any person, he may make an application to the court complaining of the resistance, and the court shall proceed to adjudicate upon the application. • Rule 98. Where the court is satisfied that the resistance was occasioned without any just cause by the judgment-debtor or by some person at his instigation or on his behalf, or by a transferee where the transfer was made during the pendency of the suit, it shall direct that the applicant be put into possession, and may detain the resister in civil prison for up to thirty days. • Rule 99. Where a person other than the judgment-debtor is dispossessed by the holder of a decree for possession, he may apply complaining of the dispossession, and the court shall adjudicate upon it. • Rule 101. All questions, including questions relating to right, title or interest in the property, arising between the parties to such an application and relevant to its adjudication, shall be determined by the court dealing with the application, and not by a separate suit. • Rule 103. An order made under Rules 98 or 100 shall have the same force as a decree, and is subject to the same conditions as to appeal. |
Rules 97 to 103 are the answer to the practical problem that symbolic possession leaves. Rather than requiring a fresh suit, the Code brings the dispute about the occupant's right into the execution file itself, where it is adjudicated with the force of a decree.
5. Landmark Points
- Order XXI Rule 35(1). Possession is delivered by removing any person bound by the decree who refuses to vacate.
- Order XXI Rule 35(3). Locks and bolts may be removed and doors broken open, after reasonable warning and facility for a woman not appearing in public to withdraw.
- Order XXI Rule 36. Where a tenant or other person entitled to occupy and not bound by the decree is in occupation, delivery is by affixing the warrant and proclaiming the decree.
- The test. Whether the occupant is bound by the decree, since a court cannot dispossess by execution a person whose rights it has not decided.
- Section 52, Transfer of Property Act, 1882. A transferee pendente lite is bound, and may be removed under Rule 35.
- Order XXI Rules 97 to 101 and 103. Resistance and dispossession are adjudicated in the execution proceeding, and the order has the force of a decree.
6. Frequently Asked Questions
What is symbolic possession?
Delivery of possession by affixing a copy of the warrant in a conspicuous place on the property and proclaiming the substance of the decree by beat of drum or other customary mode, used where the property is in the occupancy of a tenant or other person entitled to occupy it who is not bound by the decree.
When is actual possession delivered?
Where the property is in the possession of the judgment-debtor or another person bound by the decree. The officer delivers possession, removing the occupant if he refuses to vacate, and under Rule 35(3) may break open locks or doors after reasonable warning.
What decides which form of delivery applies?
A single question: whether the person in occupation is bound by the decree. If he is, he can be removed and actual possession is given. If he is not, the court cannot dispossess him and only symbolic possession is delivered.
Is a transferee during the suit bound by the decree?
Yes. Section 52 of the Transfer of Property Act, 1882 makes a transfer during the pendency of the suit subject to the decree, so a transferee pendente lite may be removed under Order XXI Rule 35.
What can a decree-holder do if he is obstructed?
He may apply under Order XXI Rule 97 complaining of the resistance, and the court shall adjudicate upon the application. Under Rule 101 all questions, including those of right, title or interest, are determined in that proceeding and not by a separate suit.
Is symbolic possession a satisfaction of the decree?
It is delivery in law, and the decree is satisfied by it. But the decree-holder may still need further proceedings to displace an occupant whose own rights have never been decided against him.
7. Related Topics in This CPC Series
- Execution of Decrees: Sections 36 to 74 and Order XXI
- Resistance to Delivery of Possession under Order XXI Rules 97 to 103
- Questions Determined by the Executing Court under Section 47
- Execution by Decree Type under the CPC