§ Three preconditions

A possession decree fails at the doorstep if these are not satisfied:

• The property must be identifiable. Order VII Rule 3 requires the plaint to describe immovable property sufficiently to identify it, with boundaries or survey numbers where they exist, and Order XX Rule 6(1) requires the decree to specify clearly the relief granted. A decree describing the property vaguely cannot be executed, since the bailiff must be able to identify on the ground what he is to deliver.

• The decree must be final as to possession. Where the decree grants possession with an inquiry into mesne profits under Order XX Rule 12, the possession part is final and executable at once, while the mesne profits part awaits the final decree.

• The application must be in order. An execution application under Order XXI Rules 10 and 11, with notice under Rule 22 where required, that is, where execution is sought more than two years after the decree, or against a legal representative, or by an assignee.

§ 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 may be removed under Rule 35

Only a person bound by the decree, which includes:

• The judgment-debtor himself;

• Persons claiming under him, such as his family members, servants and licensees in occupation through him;

• 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 by Order XXI Rule 102;

• Persons who were parties to the suit and against whom the decree runs.

§ 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 his landlord has changed. The decree-holder steps into the judgment-debtor's shoes as against that occupant.

What it does not do. It does not evict the occupant, and it cannot: he holds by a right of his own that the decree does not touch. A tenant with a subsisting tenancy, or any person entitled to occupy and not bound by the decree, remains in occupation.

The consequence. A decree-holder who wants the occupant out must proceed against him on his own footing, in a separate proceeding appropriate to his right, such as an eviction suit under the tenancy law. Symbolic delivery is the end of the execution, not a step towards physical eviction.

The test, therefore, is not who is physically present but by what right. Present through the judgment-debtor: Rule 35, and he goes. Present by his own right, not bound by the decree: Rule 36, and he stays.

Specific movable property decreed

Order XXI Rule 31

By seizure and delivery of the property, or by the detention of the judgment-debtor, or by the attachment of his property, or by both detention and attachment

Movable property not delivered, alternative money value

Order XX Rule 9 with Order XXI Rule 31

The decree states the money to be paid in the alternative, which is then executed as a money decree

Immovable property sold in execution, occupancy of the judgment-debtor or a person claiming under him

Order XXI Rule 95

On the sale becoming absolute, the court shall on the purchaser's application put him in possession, removing any person bound by the decree who refuses to vacate

Immovable property sold in execution, occupancy of a tenant or other person entitled to occupy

Order XXI Rule 96

Symbolic delivery by affixing a copy of the certificate of sale in a conspicuous place and proclaiming the substance to the occupant

§ The Order XXI Rules 97 to 103 machinery

Where delivery is resisted, the Code supplies a complete code:

• Rule 97. The decree-holder or auction purchaser who is resisted or obstructed may apply, and the court shall adjudicate the application.

• Rule 98. On the determination under Rule 101, 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.

• Rule 99. A person other than the judgment-debtor who has been dispossessed may apply, and the court shall adjudicate.

• Rule 101. All questions, including right, title and interest, arising between the parties to such an application are determined by the executing court and not by a separate suit, the court being deemed to have jurisdiction notwithstanding any other law.

• Rule 102. Rules 98 and 100 do not apply to resistance or dispossession by a transferee from the judgment-debtor after the institution of the suit, who is bound by lis pendens.

• Rule 103. Every order under Rule 98 or Rule 100 has the force of a decree and is appealable as such.

Is the occupant the judgment-debtor or someone claiming under him?

Actual delivery under Rule 35, with removal and, if needed, breaking open under sub-rule (3)

Go to the next question

Did he take a transfer from the judgment-debtor after the suit was instituted?

He is bound by lis pendens; Rule 102 denies him an adjudication, and he is removed under Rule 35

Go to the next question

Is he a tenant or other person entitled to occupy, not bound by the decree?

Symbolic delivery under Rule 36; he is not evicted, and a separate proceeding is required against him

Go to the next question

Does he resist, asserting an independent right?

The decree-holder applies under Rule 97; the court adjudicates all questions of right, title and interest under Rule 101

Delivery proceeds in the ordinary way

Has a person other than the judgment-debtor been dispossessed?

He applies under Rule 99, and the court adjudicates under Rules 100 and 101

The execution is complete on delivery