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PETITIONER: SHEW BUX MOHATA AND OTHERS

       Vs.

RESPONDENT: BENGAL BREWERIES LTD.  AND OTHERS

DATE OF JUDGMENT: 15/09/1960

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. IMAM, SYED JAFFER DAYAL, RAGHUBAR

CITATION:  1961 AIR  137            1961 SCR  (1) 680  CITATOR INFO :  R          1982 SC 989  (53)

ACT: Execution  proceedings-Delivery of Possession  acknowledged- Execution  case  dismissed-If further  execution  Proceeding Permissible-Purchaser of respondent’s interest-Whether could be added as Party-Code of Civil Procedure, 1908 (5 of 1908), 0. 21, r. 35, s. 146.

HEADNOTE: The  appellant  decree-holders in  an  execution  proceeding accepted delivery of possession and granted a receipt to the Nazir of the Court acknowledging full delivery of possession to  them but allowed the respondents, Bengal  Breweries,  to remain  in possession with their permission.  The  appellant also  permitted  the execution case to be dismissed  on  the basis that full possession had been delivered to them by the respondents.  Sometime thereafter the appellant made a fresh application  for  execution  against  the  respondent,   for eviction  which  was  resisted  under s.  47  of  the  Civil Procedure Code alleging that so far as they were  concerned, the  decree  had  been fully executed as  a  result  of  the earlier execution proceeding which had terminated, and  that further execution was not permissible in law. Held,  that  it  is  open to  the  decree-holder  to  accept delivery  of possession under 0. 21, r. 35, of the  Code  of Civil  Procedure  without actual removal of  the  person  in possession.   If  he  does  that then he  is  bound  to  the position  that  the decree has been fully executed,  and  it cannot be executed any more. Held, further, that on the principle in Saila Bala Dassi v.                             681 Nirmala Sundari Dassi whereby the purchaser from the  appel- lant  under a purchase made prior to the appeal was  brought on the record of the appeal, a purchaser from the respondent under a conveyance made prior to the appeal could be brought on the record of the appeal. Saila  Bala  Dassi v. Nirmala Sundari Dassi,  [1958]  S.C.R. 1287, followed, Maharaja  Jagadish  Nath  Roy v.  Nafay  Chandra  Paramanik, (1930) 35 C.W.N. 12, approved.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 58 of 1958. Appeal from the Judgment and decree dated April 5, 1955,  of the  Calcutta High Court in Appeal from Original  Order  No. 206 of 1953, arising out of the judgment and order dated May 20,  1953, of the Fourth Additional Sub-Judge, 24  Paris  at Alipore in Misc.  Case No. 15 of 1951. C.   K.   Daphtary,  Solicitor-General  of  India,   C.   B. Aggarwala and Sukumar Ghose, for the appellants. H.   N. Sanyal, Additional Solicitor-General of India and R. C. Datta, for the respondents Nos. 3 and 4. 1960.   September  15.   The  Judgment  of  the  Court   was delivered by SARKAR J.-This appeal arises out of an execution proceeding. It  is filed by the decree-holders and is  directed  against the judgment of the High Court at Calcutta setting aside the order  of a learned Subordinate Judge at Alipore  dismissing the  objection of a judgment-debtor to the  execution.   The High Court held that the decree having earlier been executed in  full,  the present proceedings for  its  execution  were incompetent  and  thereupon  dismissed  the  decree-holders’ petition for execution.  The question that arises is whether the decree had earlier been executed in full. The  facts  appear to have been as  follows:-One  Sukeshwari Alied  sometime  prior to 1944 possessed of three  plots  of land which at all material times, bore premises Nos. 26,  27 and  28,  Dum  Dum  Cossipore  Road,  in  the  outskirts  of Calcutta.  She left a will of which defendants Nos. 1, 2 and 6 were the executors. 682 The  executors  granted leases of these different  plots  of land to defendants Nos. 3, 4 and 5 respectively and put them in possession. Certain   persons   called  Mohatas  whose   interests   are represented by the appellants in the present appeal, claimed that Sukeshwari had only a life interest in the lands  which on  her  death  had vested in them  and  the  executors  had therefore  no right to grant the leases.  They filed a  suit against the executors and the tenants on September 15, 1954, in the Court of a Subordinate Judge at Alipore for a  decree declaring  that the defendants had no right to  possess  the lands  and  for khas possession by evicting  the  defendants from the lands by removing the structures, if any, put up by them  there.   On March 30, 1948,  the  learned  Subordinate Judge  passed a decree for khas possession in favour of  the Mohatas  and gave the defendants six months time  to  remove the  structures put up on the land.  It is the execution  of this decree with which the appeal is concerned. Defendant  No. 3 appealed from this decree and  that  appeal succeeded for reasons which do Dot appear on the record.  It is  not necessary to refer to defendant No. 3 further as  we are  not concerned in this appeal with him.  It may  however be  stated that he was in possession of premises No. 26  and no  application  for  execution appears to  have  been  made against him. The executor defendants also appealed from the decree.   The other two tenants, defendants Nos. 4 and 5, did not  appeal. Of these tenants we are Concerned only with defendant No. 4, the Bengal Breweries Ltd., a company carrying on business as distillers.   It  was in possession of premises No.  27,  on which  it  had  built a factory for  distilling  liquor  and yeast.  Defendant No. 5 was in possession of premises No. 28

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on which stood some temples. On  September  22, 1948, the Mohatas  the  decree.  holders, filed an application in the Court of the learned Subordinate Judge for execution of the decree against defendants Nos. 1, 2, 4, 5 & 6. On September 25, the learned Subordinate  Judge passed an order in execution                             683 issuing  a writ for delivery of possession of premises  Nos. 27  and  28 to the decree-holders by  removing,  any  person bound by the decree who refused to vacate the same and fixed November 22 for making the return to the writ.  On September 28,  the decree-holders applied to the  learned  Subordinate Judge  for obtaining help from the police for executing  the decree.   On September 29, the executor  defendants  applied for  a  short stay of execution to enable them to  obtain  a stay order from the High Court.  Defendant No. 4 also itself made an application for staying the execution for two months to  enable  it to come to an arrangement  with  the  decree- holders in the meantime.  On the decree-holders assuring the Court that they would not execute the decree till 2 p. m. of the  next  day these two petitions by  the  judgment-debtors were adjourned till September 30. On September 30, 1948, the two petitions for stay were taken up  for  hearing  by the learned  Subordinate  Judge.   With regard  to  the  petition by  the  executor  defendants,  he observed  that he had no power to stay execution in view  of 0.  41, r. 5, of the Code of Civil Procedure  and  thereupon dismissed that petition.  The petition for time by defendant No. 4 was also dismissed but in respect of it the  following observation  appears  in  the order:  "  The  decree-holders undertake  that  they  will allow the company  to  carry  on normal  business  for six weeks from now by which  time  the company  will  settle  matter  with  the  decree-holders  ". Thereafter  on the same day the decree-holders deposited  in Court, the necessary costs for police help for executing the decree  and  the  learned Subordinate  Judge  requested  the police to render the necessary help on October 1, 1948.   It also appears that subsequently on the same day defendant No. 4  filed another petition for stay of execution and  also  a petition under s. 47 of the Code objecting to the execution, alleging  that there was a tentative arrangement between  it and the decree-holders that it would pay Rs. 150 as  monthly rent  and  it  need not file any  appeal  to  challenge  the validity  of the decree.  The decree-holders  opposed  these petitions by defendant 684 No.  4. The learned Subordinate Judge made no order on  them but adjourned them to November 11, 1948, as he felt that the matter required investigation. On  October  1, 1948, the Nazir of the  Court  proceeded  to premises  Nos.  27 and 28 with certain  police  officers  to execute the decree in terms of the writ.  He found the  gate of premises No. 27 closed but later the manager of defendant No.  4 opened it at his request.  What  happened  thereafter appears  from  the  return  of the Nazir  which  is  in  the following  words: " We then entered into the  factory  house and  delivered possession in each of the buildings at  about 10-30  a.  m.  Before removal of  the  furniture  and  other movables   from  those  buildings  there  was  an   amicable settlement between the decree-holders and the manager of the factory  that  the factory will run its normal  business  as before for 6 weeks and in the meantime the executive body of the   factory will make settlement with  the  decree-holders and  some  of the decree-holders’ men will remain  there  as guards  ".  It is admitted that the  decree-holders’  guards

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were thereafter posted on the premises. The  Nazir then proceeded to premises No. 28 and the  return also  shows that he delivered possession of  these  premises to’  the decree-holders, The relevant portion of the  return is  in these words: "Then we proceeded towards the  premises No.  28 (Old No. 8) Consisting of 2 temples and  found  that the priest of the temple was present.  He amicably came  out of the compound and possession was delivered of the temples, lands, tanks and other plots mentioned in the writ." After  possession  had been  delivered,  the  decree-holders executed  on  the same day a receipt  in  acknowledgment  of possession having been received by them.  That receipt is in these terms: "  Received  from  Sri  Bhabataran  Banerjee,  Naib   Nazir, District  Judge’s Court, Alipore, 24-Parganas,  delivery  of possession  of premises Nos. 7 and 8 (formerly Nos.  27  and 28) Dum Dum Cossipore Road in the above execution case, this day  at 10-30 a.m. including all buildings,  tanks,  gardens and  temples, etc., all these mentioned in the writ  in  its schedule."                             685 The receipt by mistake describes the premises as "  formerly " Nos. 27 and 28 for the premises then bore these numbers. It  appears  that  at 11-15 a. m. on October  1,  1948,  the executor  defendants  moved the High Court) for  a  stay  of execution in the appeal filed by them from the decree.   The High  Court directed an ad interim stay.  After  this  order had  been  made the executor defendants  moved  the  learned Subordinate  Judge on the same day for consequential  orders on the strength of the stay of execution granted by the High Court.   The  learned Subordinate Judge thereupon  made  the following order : " In the special circumstances recall  the writ  provisionally.   To  5th November,  1948,  for,  fresh consideration  if formal stay order is not received  in  the meantime   ".   This  order  was  passed   on   the   verbal representation  of the lawyers for the  executor  defendants that  the High Court had directed the stay of execution  for there  had  not been time for the High Court’s order  to  be formally   drawn   up  and  produced  before   the   learned Subordinate Judge. On November 22, 1948, which was the day fixed for making the return  to  the execution of the writ, the  following  order appears to have been passed by the learned Subordinate Judge in  the execution case: " Possession delivered.   One  third party has filed an application under Or. 21, r. 100,  C.P.C. Let the execution case be put up after the disposal of Misc. Case No. 13 of 1948." The Miscellaneous Case No. 13 of  1948 was the one started on the petition of the third party under Or. 21, r. 100 of the Code, objecting to his removal by  the execution.   This third party was one Bhairab Tewari and  he presumably  was claiming some right in premises No.  28  for there  was no question of his making any claim  to  premises No. 27 which were exclusively in the possession of defendant No. 4. The  ad interim stay issued by the High Court on October  1, 1948,  in the appeal filed by the executor defendants,  came up for final hearing and resulted in the following order  on January 21, 1949. "If anything is due on account, of costs which 686 has  not  been paid, that amount will be  deposited  in  the Court  below  by defendant No. 4 (i.e.,  Mr,  Sen’s  client) within a month from to day, and then three month’s time from to-day  will be given to him to  remove the machineries  and vacate  that  portion  of  the land  in  suit  which  he  is

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occupying  as  a  lessee  and which he is  using  now  as  a brewery.   In default of the deposit being made and also  in default  of  vacating the premises as directed  above,  this Rule will stand discharged. We  do  not stay delivery of possession in  respect  of  any other  item in which defendant No. 4 or No. 1, or any  other defendant save and except defendant No. 3 is interested." The appearances of the parties recorded in this order do not show  any appearance having been made in connection with  it by defendant No. 4. It does not appear from the records what other  proceedings, if any, were taken in the appeal by  the executor  defendants  but  it  is  agreed  that  appeal  was dismissed on September 8, 1954. Defendant  No.  4  did not vacate at the end  of  the  three months  mentioned  in the order of January  21,  1949.   The parties  then took proceedings in Criminal Courts  under  s. 144  of the Code of Criminal Procedure and  other  connected provisions.    It  is  not  necessary  to  refer  to   these proceedings  and  it is enough to state that  they  did  not affect the possession of premises No. 27 by defendant No. 4, who  continued in possession till the United Bank  of  India Ltd. took over possession as hereinafter stated. On  September 8, 1949, the following order was made  by  the learned Subordinate Judge in the execution case: "  Decree-holder takes no other steps.  Possession so far as regards the Bengal Breweries are concerned, delivered.                           Ordered that the execution case be dismissed on part satisfaction." On September 27, 1951, the decree-holders made a                             687 fresh  application  for execution against  defendant  No.  4 alone by evicting it from premises No. 27.  Defend- ant  No. 4  put in an objection against the execution under s. 47  of the  Code  alleging  that so far as it  was  concerned,  the decree  had been fully executed as a result of  the  earlier execution  proceedings  which  terminated by  the  order  of September  8,  1949,  and that  further  execution  was  not permissible  in law.  It is out of this objection  that  the present  appeal has arisen and the question for decision  is whether the objection to the execution so raised, is  sound. As  earlier stated, the learned Subordinate Judge  dismissed the objection to the execution but on appeal the High  Court set   aside  his  order  and  dismissed  the  petition   for execution.   The  High Court granted a  certificate  for  an appeal to this Court on June 15, 1956 and on August 3, 1956, the High Court passed an order directing that the appeal  be admitted. On  August 11, 1960, an order was made by this Court  adding three  persons named Mool Chand Sethia, Tola Ram Sethia  and Hulas  Chand Bothra as parties respondents to  this  appeal. The  order  however  provided that  the  appellants  decree- holders would have a right to object to the locus standi  of these persons in the appeal.  At the hearing before us  only these  added  parties  appeared to contest  the  appeal  The appellants  have  raised a preliminary  objection  that  the added  parties have no locus standi and cannot be  heard  in the appeal. It   appears  that  defendant  No.  4  had  executed   three successive mortgages of premises No. 27 with all  structures and  appurtenances,  to  a bank called  the  Coming  Banking Corporation  Ltd.   The first of these  mortgages  had  been executed  on May 25, 1944, and the other two  mortgages  had been executed after the suit in ejectment had been filed but before  that  suit  had been decreed.   The  assets  of  the Coming  Banking Corporation Ltd. became subsequently  vested

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in  the United Bank Limited.  Some time in 1953, the  United Bank filed a suit for enforcement of the mortgages.  On  May 30, 1955, a final mortgage decree was passed 88 688 in  favour  of the United Bank.  On July  20,  1956,     the mortgaged properties were put up to auction and purchased by the  United Bank.  On March 1, 1958, the mortgage  sale  was confirmed  and  subsequently   the United  Bank  was  put in possession of premises No. 27.  On July 13,1960, the  United Bank Conveyed premises No. 27 along with all structures  and appurtenances and all its right, title and interest  therein to  these  added  respondents.   It is  by  virtue  of  this conveyance  that  the added respondents obtained  the  order from  this Court dated August 11, 1960, making them  parties to the appeal.  Defendant No. 4, the Bengal Breweries  Ltd., is  now in liquidation and it has not entered appearance  to this appeal nor taken any steps to defend it. It  appears to us that the added respondents  were  properly brought  on’  record.  The decision of this Court  in  Saila Bala Dassi v. Nirmala Sundari Dassi (1), supports that view. There it was held that an appeal is a proceeding within  the meaning  of  s.  146 of the Code and the right  to  file  an appeal carried with it the right to continue an appeal which had  been  filed  by the person  under  whom  the  appellant claimed  and  on this basis a purchaser from  the  appellant under  a purchase made prior to the appeal was’  brought  on the  record  of  the  appeal.  We think  that  on  the  same principle  the added respondents in the case before us  were properly brought on the record. It  is not in dispute that if the decree was  once  executed against defendant No. 4 in full, then it cannot be  executed over  again regarding premises No. 27.  In other  words,  if possession  had been fully delivered to  the  decree-holders in.  execution of the decree on October 1, 1948, the  decree must  have been wholly satisfied and nothing remains  of  it for  enforcement by further execution.  The decree  was  for khas  possession  and under Or. 21, r. 35, of this  Code  in execution of it possession of the property concerned had  to be delivered to the decree-holders, if necessary, by  remov- ing any person bound by the decree who refused to vacate the property.  The records of the proceedings (1)  [1958] S.C.R. 1287. 689 show  that such possession was delivered.  Defendant  No.  4 was  the party in possession and bound by the decree.   With regard  to defendant No. 4, the order made on  September  8, 1949,  states,  " Possession so far as  regards  the  Bengal Breweries  are  concerned,  delivered."  This  is  an  order binding  on the decree-holders.  It has not been  said  that this  order  was wrong nor any attempt made at any  time  to have  it  set aside or to challenge its correctness  in  any manner.   The same is the position with regard to the  order of  November 22, 1948, recording on the Nazir’s return  that possession had been delivered in terms of the writ. The order of September 9, 1949, no doubt further’ states,  " Ordered  that  the  execution  case  be  dismissed  on  part satisfaction  ".  The words " part satisfaction  "  in  this order, however clearly do not refer to part satisfaction  as against defendant No. 4, the Bengal Breweries, for the order expressly states, " possession so far as regards the  Bengal Breweries   are  concerned,  delivered."  The   decree   had therefore  been  satisfied  in full as  against  the  Bengal Breweries  Ltd. and consequently as regards premises No.  27 in  its possession.  Even the learned Subordinate Judge  who

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held  the  execution maintainable found that "  the  decree- holders  had no doubt previously got possession ".  Notwith- standing  this, the learned Subordinate Judge  decided  that the decree could still be executed as he took the view  that at  the hearing before the High Court on January  21,  1949, defendant  No.  4  "  must  have  ignored  the  delivery  of possession  by the Naib Nazir and he cannot now be heard  to say  that the delivery of possession by the Naib  Nazir  was legal  and valid ". For reasons to be stated later,  we  are unable to agree with this view. It is true that the Nazir’s return showed that defendant No. 4  had  not been bodily removed.  But the same  return  also shows  that  it had not been so removed because  of  certain arrangement arrived at between it and the decree-holders and as  the  decree-holders  had not  required  the  removal  of defendant No. 4 from the premises.  Now under Or. 21, r.  35 a  person  in possession and bound by the decree has  to  be removed 690 only if necessary, that is to say, if necessary to give  the decree-holder the possession he is entitled to and asks for. It would not be necessary to remove the person in possession if the decree-holder does not want such removal.  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 lie 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 accept- ed 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  any more.  In the case of Maharaja  Jagadish  Nath Roy  v. Nafar Chandra Parmanik (1) an exactly similar  thing bad happened and it was held that the decree was not capable of further execution.  It was there said at p. 15, " 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 symbolical possession only with  some 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 ". We entirely agree with the view that was there expressed. The  learned Solicitor-General appearing for the  appellants contended that the order of September 30, (1)  (1930) 35 C.W.N. 12.                             691 1948, shows that the decree-holders bad undertaken to  allow defendant  No. 4 to carry on normal business for  six  weeks and  therefore, on October 1, 1948, when they  proceeded  to execute  the decree, they were not seeking to execute it  in full  by removing defendant No. 4 from possession.  He  said that  the  execution on October 1, 1948, was  therefore  not complete as defendant No. 4 had not been removed pursuant to the undertaking given on September 29, 1948.  We are  unable

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to read the order made on September 8, 1949, or the  Nazir’s return  and the receipt granted by the decree-holders  in  a manner  contrary to the plain meaning of the words  used  in them,  because of the undertaking.  Further, it is  not  the case of the decree-holders that order, the Nazir’s return or the receipt is incorrect or had come into existence  through any misapprehension.  The legality or correctness of none of these  was  ever  nor  is  now  challenged.   The  order  of September 8, 1949, is binding on the decree-holders and they cannot  now  go  behind its terms.   For  the  same  reason, neither  can they go behind the order of November 22,  1948, recording in terms of the Nazir’s return that possession had been delivered. It  further seems to us that if the undertaking  meant  that defendant No. 4, was not to be removed from possession, then the execution would have been stayed, which it was not,  for the only way in which it was possible to execute the  decree was by removal of defendant No. 4 from possession as it  was alone in actual possession, the executor defendants claiming only  rent  from it as landlord.  Then again  the  order  in which the undertaking appears, also states that the stay  of execution  against  defendant  No. 4 as  asked  by  it,  was refused.    Besides  this,  the  order  sheet   shows   that immediately after the order stating the undertaking had been made  another order was made on the same  day  acknowledging receipt  from the decree-holders of the costs of the  police for  helping  the execution and directing  that  the  police might be approached to render any help necessary on  October 1,  1948, at the time of the execution of the  decree.   The only  possible way to reconcile all the various orders,  the return 692 and  the  receipt, is to proceed on the basis  that  by  the undertaking  the decree-holders agreed that after  they  had taken  possession,  they  would allow  defendant  No.  4  to continue  its  business on the premises for six  weeks  with their  permission.  Such undertaking does not show  that  it was not intended to remove defendant No. 4 from possession. The  learned Solicitor-General also contended that the  fact that  the undertaking was confined only to a period  of  six wee s would show that the decree-holders were not permitting defendant  No.  4 to continue in possession after  they  had obtained  possession from it, for then no period would  have been  mentioned.  We are unable to accept this argument  for there  is nothing to prevent the decree-holders  after  they had   obtained  possession  under  the  decree,   to   grant permission to defendant No. 4 to continue in possession  for any  period  they. liked; such permission could be  for  six weeks  or  for any longer or shorter period as  the  decree- holders thought fit. The  learned Solicitor-General then contended that the  case was one where the decree had been partly executed on one day and execution had been stopped on that day for want of  time or  other  reason,  with the object of continuing  it  on  a subsequent  day.   In such a case, he said, there  would  be nothing to prevent subsequent execution of the same  decree. It  does  not seem to us that the present case  is  of  this nature.  The orders and documents on the record are  against this  view.  The further execution is not in the  course  of the  earlier  execution  but  is  a  fresh  execution.   The interruption in the execution was for over two years.  Apart from  other things, the placing of their own guards  on  the premises  by the decree-holders could only be on  the  basis that  they  had taken possession.   The  learned  Solicitor- General  said  that the guards had been put there  with  the

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permission  of  defendant  No.  4.  The  Nazir’s  return  is entirely  against such a view.  Indeed, it is  difficult  to see  why  defendant No. 4 would permit  the  decree-holders’ guards  on  the  premises unless it was on  the  basis  that possession  had  been taken by the  decree-holders  and  the guards                             693 were  there  to protect their possession.  The  guards  were subsequently  removed  but  it does  not  appear,  from  the records. in what circumstances they were’ removed. Nor  do we think that the order of October 1, 1948,  assists the  decree-holders.   That order directed the  writ  to  be recalled  provisionally.  The order was  wholly  infructuous for  the writ had earlier been duly executed.   The  learned Subordinate Judge himself came to that finding.  This. as we have  said, is also clear from the records of the  execution case.   The  writ could not be recalled after  it  had  been ’executed  fully.   Nor does the order  establish  that  the decree had been executed in part only.  The writ was not  in fact  recalled before the decree had been executed in  full. The order of September 8, 1949, makes it impossible to  hold that  the  writ was recalled after it had been  executed  in part only. The other argument advanced by the learned Solicitor-General was  based on the order of the High Court dated January  21, 1949.  It was said that order indicated that the decree  had not   been  executed  by  removing  defendant  No.  4   from possession because it, in substance, was an order for a stay of execution of the decree.  It was also said that the order must have been on the basis of a representation by defendant No. 4 and a finding that the decree had not been executed by removing  defendant No. 4 from possession.   The  contention was that finding and representation was binding on defendant No.  4  and therefore on the added respondents  and  further that having obtained the order on the basis that it had  not been  ousted from possession in execution, defendant  No.  4 and  hence the added respondents, could not be permitted  to approbate  and reprobate that position and now be heard  to- say that the decree had been executed in full. We  think that both these contentions are  ill-founded.  The order  is far from clear.  We have already pointed out  that there  is  nothing in it to show that defendant  No.  4  had asked  for any stay.  Defendant No. 4 had not appealed  from the decree.  It was not 694 entitled  to a stay of the execution of the decree.  It  was in  possession  of the premises with the permission  of  the decree-holders.   The permission had initially been for  six weeks  which period had expire was executor  defendants  who had  obtained  an  ad interim stay from the  High  Court  on October 1, 1948.  This order was infructuous because  forty- five minutes prior to the time that it was made, the  decree had been executed in full.  In those circumstances the Court on January 21, 1949, may be at the request of defendant  No. 4,  gave it three months’ time to vacate the premises.   The request,  if  any,  by defendant No. 4 does  not  involve  a representation  that  the decree had not  been  executed  in full.  It may, at most, mean that the six weeks’  permission initially  granted  by the decreeholders  might  be  further extended.   With  regard. to the other  contention,  namely, that  the order of January 21, 1949, amounted to  a  finding that  the decree had not been executed in full, we  have  to point  out that no such finding appears on the face  of  it. The  order was made on an interlocutory proceeding  and  was only  in  aid  of the final decision  in  the  appeal.   The

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proceeding  in  which the order was made did not  involve  a decision  of the issue whether the decree had  earlier  been executed in full.  No finding on such an issue can therefore be implied in the order.  This order does not in our view in any  way prevent the added respondents from contending  that the decree had been executed in full. In  the result this appeal fails and it is dismissed. We  do not think it fit to make any order as to costs.                      Appeal dismissed.                             695.