Symbolic possession in execution sale disputes where occupants claim tenancy and are not shown to hold under the judgment-debtor.

An auction purchaser of mortgaged property sold in execution is entitled only to symbolic possession where the occupants are tenants or persons otherwise entitled to occupy, and not judgment-debtors or persons claiming under them. The distinction between Order 21 Rule 95 and Rule 96 of the Code of Civil Procedure turns on the character of possession at the time title is confirmed and the sale certificate is issued. Because the occupants' tenancy claims could not be finally adjudicated in execution and they were not shown to hold under the judgment-debtor, physical delivery was unavailable in these proceedings.

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Issues: Whether an auction purchaser of mortgaged property sold in execution is entitled, under Order 21 Rules 95 and 96 of the Code of Civil Procedure, to actual physical possession from occupants claiming to be tenants, or only to symbolic possession.

Analysis: The decisive factor was the character of the occupants' possession on the date the auction purchaser acquired title by confirmation of sale and issuance of the sale certificate. The occupants were not judgment-debtors, were not shown to be in occupation on behalf of the judgment-debtor, and were not claiming under any title created by the judgment-debtor after attachment. Their claim was that of tenancy, and the validity or binding nature of such tenancies could not be adjudicated in these execution proceedings. The Court applied the distinction between Rule 95, which enables delivery of physical possession where the property is in the occupancy of the judgment-debtor or persons claiming under him, and Rule 96, which contemplates symbolic possession where the property is in the occupancy of a tenant or other person entitled to occupy. The Court also followed the principle that an outside auction purchaser cannot, in execution, recover physical possession from tenants whose rights require separate adjudication.

Conclusion: The auction purchaser was not entitled to actual physical possession in these proceedings and was entitled only to symbolic possession.

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