Execution sale possession rights: an auction purchaser against tenants in occupation is limited to symbolic possession, not actual delivery.

The Supreme Court considered whether an auction purchaser in execution of a mortgage decree could obtain actual physical possession from occupants who were tenants created after the decree. It held that Order XXI Rules 95 and 96 of the Code of Civil Procedure controlled the remedy: Rule 95 permits actual possession only against the judgment-debtor, persons claiming through him, or persons holding under a title created after attachment, while Rule 96 applies where the property is occupied by tenants or other persons entitled to occupy, limiting the purchaser to symbolic possession. The appeal succeeded and the direction for physical possession was set aside.

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Issues: Whether an auction purchaser in execution of a mortgage decree is entitled to recover actual physical possession from persons occupying the property as tenants created after the decree, or is confined to symbolic possession under the Code of Civil Procedure.

Analysis: Section 52 of the Transfer of Property Act prohibits transfers or dealings during pendency of a suit where rights in immovable property are directly and specifically in question, but the Court held that the decisive question in the present proceeding was the scope of Order XXI, Rules 95 and 96 of the Code of Civil Procedure. Rule 95 authorises delivery of actual possession only where the property is in the occupation of the judgment-debtor, a person on his behalf, or a person claiming under a title created by the judgment-debtor after attachment. The appellants were tenants in occupation on their own claim and did not fall within those categories. Rule 96 applies where the property is in the occupation of a tenant or other person entitled to occupy, in which event the purchaser is entitled only to symbolic possession. The Court further held that the earlier decisions relied upon did not conclude this precise question in favour of actual possession for an outside auction purchaser.

Conclusion: The auction purchaser was not entitled to actual physical possession from the tenants and could obtain only symbolic possession.

Final Conclusion: The appeal succeeded, the order directing delivery of physical possession was set aside, and the auction purchaser's entitlement was confined to symbolic possession of the portions in occupation of the appellants.

Ratio Decidendi: An outside auction purchaser can obtain actual possession under Order XXI, Rule 95 of the Code of Civil Procedure only against persons falling within that rule, and where the occupants are tenants in their own right, the purchaser is limited to symbolic possession under Rule 96.

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