Code of Civil Procedure, 1908 (CPC)
Delivery of Immovable Property in Execution: Actual and Symbolic Possession
A decree for possession is satisfied by delivery, and the Code makes one distinction do all the work: is the person in occupation bound by the decree or not? If he is, he is removed and actual possession is given under Order XXI Rule 35 of the Code of Civil Procedure, 1908. If he is not, only symbolic possession can be given under Rule 36, and he stays where he is. These notes set out both forms of delivery, the test that separates them, the parallel rules for an auction purchaser, and the practical consequences of each.
Execution by the kind of decree, with possession under Rules 35 and 36
1. Actual Delivery: Order XXI Rule 35
§ Order XXI Rule 35, CPC 1908 (in substance) (1) Where a decree is for the delivery of any immovable property, possession thereof 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 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. |
§ Who is bound by the decree Actual delivery is available against all of these: • The judgment-debtor himself; • Persons claiming under him and in occupation through him: family members, servants, licensees and persons let into possession by him after the decree; • A transferee pendente lite, that is, a person to whom the judgment-debtor transferred the property after the institution of the suit, who is bound by Section 52 of the Transfer of Property Act, 1882 and excluded from adjudication by Order XXI Rule 102; • Persons who were parties to the suit and against whom the decree runs, including co-defendants bound by its terms. |
Sub-rule (3) is what gives the decree force, and its safeguards are conditions rather than courtesies: reasonable warning must be given, and a woman who by custom does not appear in public must be given the facility to withdraw, before locks are opened or doors broken. Sub-rule (2) covers the case of joint possession, where exclusive delivery is impossible because the decree-holder is entitled only to hold along with others; delivery is then made by affixation and proclamation, which is symbolic in form though the decree-holder's right is a real one.
2. Symbolic Delivery: Order XXI Rule 36
§ 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. |
§ What symbolic delivery does and does not achieve What it does. It transfers to the decree-holder the interest of the judgment-debtor in the property, and puts the occupant on notice that the person to whom he must answer has changed. The decree-holder steps into the judgment-debtor's shoes as against that occupant, so rents thereafter are payable to him. What it does not do. It does not evict the occupant, and it cannot. He holds by a right of his own, a subsisting tenancy or some other entitlement, which the decree between the plaintiff and the judgment-debtor does not touch. What follows. A decree-holder who wants the occupant out must proceed against him on his own footing, in a proceeding appropriate to that right, such as an eviction suit under the tenancy legislation. Symbolic delivery completes the execution; it is not a step towards physical eviction. The test is by what right, not who is present. In occupation through the judgment-debtor: Rule 35, and he goes. In occupation by his own right, not bound by the decree: Rule 36, and he stays. |
3. Actual and Symbolic Possession Compared
Basis | Actual possession, Rule 35 | Symbolic possession, Rule 36 |
|---|---|---|
When it applies | The property is in the possession of the judgment-debtor or of a person bound by the decree | The property is in the occupancy of a tenant or other person entitled to occupy and not bound by the decree |
How it is effected | Physical delivery to the decree-holder, removing any person bound by the decree who refuses to vacate | Affixing a copy of the warrant in a conspicuous place on the property and proclaiming the substance of the decree to the occupant |
Use of force | Permitted: locks may be opened and doors broken after reasonable warning, with protection for a woman who does not appear in public | None; nothing is removed and no one is evicted |
Effect on the occupant | He is removed from the property | He remains in occupation; only the identity of the person entitled to his rent or attornment changes |
What the decree-holder gets | Physical possession of the property | The interest of the judgment-debtor, as against that occupant |
What remains to be done | Nothing; the decree is satisfied as to possession | A separate proceeding against the occupant, on his own footing, if he is to be removed |
Auction purchaser's equivalent | Order XXI Rule 95 | Order XXI Rule 96 |
4. Delivery to an Auction Purchaser: Rules 95 and 96
i. Rule 95: actual delivery. Where immovable property has been sold in execution and the sale has become absolute, the purchaser may apply to the court for delivery, and where the property is in the occupancy of the judgment-debtor, or of some person on his behalf, or of some person claiming under a title created by the judgment-debtor subsequently to the attachment, the court shall put the purchaser into possession, removing if necessary any person who refuses to vacate.
ii. Rule 96: symbolic delivery. Where the property is in the occupancy of a tenant or other person entitled to occupy and not bound to relinquish, the court delivers possession by affixing a copy of the certificate of sale in a conspicuous place and proclaiming the substance to the occupant.
iii. Title and standing. The purchaser's title vests from the date of the sale once it becomes absolute, under Section 65, and by Explanation II to Section 47 he is a deemed party, so all questions about delivery of possession to him are decided by the executing court and not by a separate suit.
iv. Timing. An application for delivery under Rule 95 or 96 must be made within one year from the date the sale becomes absolute, under Article 134 of the Limitation Act, 1963.
5. Resistance and the Rules 97 to 103 Machinery
§ Where delivery is resisted or a stranger is dispossessed The Code supplies a complete code: • Rule 97. A decree-holder or auction purchaser resisted or obstructed in obtaining possession applies, and the court shall adjudicate. • Rule 98. On the determination, the court directs possession, dismisses the application, or makes such other order as it thinks fit; and where the resistance was without just cause by the judgment-debtor, a person at his instigation, or a transferee pendente lite, it shall direct possession and may order detention for up to thirty days. Section 74 states the same power. • Rule 99. A person other than the judgment-debtor who has been dispossessed applies, and the court adjudicates under Rule 100. • Rule 101. All questions, including right, title and interest, are determined by the executing court and not by a separate suit. • Rule 102. Rules 98 and 100 do not apply to a transferee from the judgment-debtor after the institution of the suit. • Rule 103. Every order under Rule 98 or Rule 100 has the force of a decree and is appealable as such. |
6. Landmark Points
- Order XXI Rule 35(1). Actual possession is delivered by removing any person bound by the decree who refuses to vacate.
- Order XXI Rule 35(3). Locks may be opened and doors broken after reasonable warning, and a woman who by custom does not appear in public must be given the facility to withdraw.
- Order XXI Rule 36. Symbolic possession where a tenant or other person entitled to occupy and not bound by the decree is in occupancy; he is not evicted.
- Order XXI Rules 95 and 96. The same division applies to an auction purchaser after the sale becomes absolute, within one year under Article 134 of the Limitation Act, 1963.
- Order XXI Rules 97 to 103 with Section 74. Resistance, obstruction and dispossession are adjudicated by the executing court, whose determination has the force of a decree.
- Order VII Rule 3 with Order XX Rule 6(1). The property must be described with enough precision in the plaint and the decree for delivery to be possible on the ground.
7. Frequently Asked Questions
What is the difference between actual and symbolic possession?
Actual possession under Order XXI Rule 35 is given where the occupant is the judgment-debtor or a person bound by the decree, and he is physically removed. Symbolic possession under Rule 36 is given where a tenant or other person entitled to occupy and not bound by the decree is in occupancy; the warrant is affixed and the substance proclaimed, but the occupant is not evicted.
Who can be removed under Order XXI Rule 35?
Only a person bound by the decree: the judgment-debtor, persons claiming under him and in occupation through him, a transferee from him after the institution of the suit, and persons who were parties to the suit and against whom the decree runs.
Does symbolic delivery evict a tenant?
No. It transfers the judgment-debtor's interest to the decree-holder and puts the tenant on notice of that change, but he holds by a right of his own which the decree does not touch. To remove him, a separate proceeding on his own footing, such as an eviction suit under the tenancy law, is required.
Can the court break open a lock to deliver possession?
Yes, under Order XXI Rule 35(3), where a person bound by the decree does not afford free access to a building or enclosure. The court's officers may remove or open any lock or bolt or break open any door, but only after giving reasonable warning and after giving a woman who by custom does not appear in public the facility to withdraw.
How is a decree for joint possession executed?
Under Order XXI Rule 35(2), by affixing a copy of the warrant in a conspicuous place on the property and proclaiming the substance of the decree, since exclusive physical delivery is impossible where the decree-holder is entitled only to hold jointly with others.
How does an auction purchaser obtain possession?
Under Order XXI Rule 95 the court puts him into possession where the property is in the occupancy of the judgment-debtor, a person on his behalf, or a person claiming under a title created by him after the attachment; and under Rule 96 symbolically where a tenant or other person entitled to occupy is in occupancy. The application lies within one year under Article 134 of the Limitation Act.
What if the person in possession resists delivery?
The decree-holder or purchaser applies under Order XXI Rule 97 and the court adjudicates, deciding all questions of right, title and interest itself under Rule 101. Where the resistance was without just cause by the judgment-debtor or a person on his behalf, detention for up to thirty days may follow under Rule 98(2) and Section 74.
8. Related Topics in This CPC Series
- Execution of a Possession Decree under Order XXI
- Order XXI Rules 97 to 103: Resistance, Obstruction and Third-Party Claims
- Title of the Auction Purchaser under Section 65
- Decree in a Suit for Possession under Order XX Rule 12