JUDGMENT D.K. Seth, J.
1. In execution of a decree dated 7.11.1963 passed in Original Suit No. 299 of 1963 between Tara Chand and B. L. Mitra, the suit property was sold in auction on 17.4.1965. The sale certificate was issued on 23rd August. 1965. The petitioner filed an application under Order XXI, Rule 58 claiming that she was in possession of the disputed house in pursuance of an agreement for sale executed by B. L. Mitra on 3.8.1962, in part performance whereof the possession of the said property was delivered to the petitioner. The said objection was registered as Misc. Case No. 52 of 1965 which was ultimately dismissed on 23rd May, 1965 on merits, whereafter the auction sale was confirmed by issuing sale certificate on 23rd August, 1965. The petitioner filed Original Suit No. 88 of 1965 on 21st September. 1965 which was dismissed on 21.12.1966. First Appeal No. 138 of 1967 preferred against the said decree dated 21.12.1966 was allowed by remanding the case for disposal with the direction for disposal of the substitution application and if the substitution application is allowed, the suit would be decided once again. But ultimately the application for substitution was dismissed, against which a revision was filed and the said revision was also dismissed. Thereafter another revision was filed before this Court which was dismissed by an order dated 16th August, 1979. Thereupon, the respondent No. 1 filed an application under Order XXI, Rule 95 for delivery of possession of the property sold in auction to him. Against the said application, the petitioner filed her objection under Order XXI. Rule 63 opposing the delivery of possession and took several objections. The application filed by respondent No. 1 for delivery of possession was dismissed by an order dated 28.11.1983. against which a revision being Civil Revision 26 of 1984 was moved. By order dated 15th September. 1992 the said revision was allowed and the order dated 28.11.1983 was set aside while directing the Court below to decide the petitioner's application dated 22.4.1966 for deciding the question of delivery of possession. This application was dismissed by the learned executing court by order dated 28.11.1983. Against the said order, a civil revision was filed which was allowed by an order dated 15th September. 1992 setting aside the order dated 28.11.1983. It is this order which has since been challenged in this writ petition.
2. It is the contention of the petitioner that since once possession has been delivered though symbolic, no second application for delivery of possession would lie. Learned trial court had found favour with this submission whereas the revisional court had held against the said view and was of the view that second application is maintainable.
3. Sri Vishnu Kumar, learned counsel for the respondent No. 1 submits that the revisional court had decided the case correctly and the proposition laid down by it is in accordance with law.
4. After having heard learned counsel and perusing the order and records, it appears that on admission of the petitioner herself she had been claiming through Judgment-debtor, from whom the petitioner had entered into the possession by virtue of an agreement of sale executed in 1962, therefore, it is the admitted position that the petitioner had been in possession of the suit property and thereby claiming title under the Judgment debtor. Thus, the suit property is in occupancy of some person claiming a title created by the judgment debtor as has been claimed by the petitioner. The petitioner has not claimed that the judgment debtor had executed any sale deed. Only possession was delivered to her pursuant to an agreement for sale, therefore, they cannot claim anything more than occupancy on behalf of the judgment debtor. The petitioner has claimed that she entered into possession by virtue of a right created by the judgment debtor even before the suit was filed. However, this assertion has not found favour of the Court in Original Suit No. 88 of 1965 filed by the petitioner seeking to establish such assertion. Once this contention is negatived, it is not open to the petitioner to raise the issue once again. The right having been claimed on the basis of the alleged fact of delivery of possession, a fact which the petitioner failed to establish as aforesaid, it cannot be said that any title is created by the judgment debtor before attachment.
5. Order XXI, Rule 95 provides where an immovable property is in occupancy of the judgment debtor or some person on his behalf other than person claiming title created by the judgment debtor before attachment, in that event the Court shall on the application of the auction purchaser, order delivery of possession putting such purchaser into possession and if necessary, by removing any such person who refuses to vacate the same. A person occupying the property under a title created by the judgment-debtor before attachment, however, cannot be removed. The petitioner, as it appears from the fact, has failed to establish that she is a person in occupation under a title created by the judgment debtor before attachment.
6. Since in the present case, admittedly the petitioner is claiming occupation on behalf of the judgment debtor by virtue of the alleged agreement for sale and delivery of possession without claiming that any sale deed has been executed in their favour by which any title is created, therefore, at best she can be treated to be a person claiming a title created by the Judgment debtor subsequent to the attachment. In the absence of any such right being established, she cannot but be a person in occupancy on behalf of the judgment debtor. Thus, the situation squarely comes within the ambit of Order XXI, Rule 95.
7. The argument that if symbolic possession is obtained, in that event no second application would lie, may be applicable in respect of cases covered under Order XXI, Rule 96 where property is in possession of any tenant or any person entitled to occupy the same. Admittedly, the original suit was instituted in 1963 and the petitioner had claimed to have come into possession on 3rd August, 1962 on the basis whereof she had filed a suit which stood dismissed and thereby nullifying her claim to have entered into possession even before the suit and as such, she cannot resist the claim of respondent No. 1 auction purchaser on the ground that she was entitled to occupy the same even otherwise than a tenant. Order XXI. Rule 96 applies to the cases where property is in occupation of tenant or some person who are entitled to occupy that creates an interest in them to occupy the said property. In the present case, no such interest having been found to have been established despite her attempt to do so in Original Suit No. 88 of 1965 which was decided against her, she cannot bring her case within the ambit of Order XXI, Rule 96. If it is a case within the meaning of Order XXI, Rule 95. In that event the auction purchaser has a right to be put into possession even by removing the person who refuses to vacate the said property. So long such relief is not granted, the right to resort to Order XXI, Rule 95 to the auction purchaser is not exhausted. Delivery of symbolic possession is not contemplated in Order XXI. Rule 95 when suit property is in occupation of the judgment-debtor or some person occupying the same on his behalf. The petitioner having claimed to have entered into the possession through the judgment debtor, now she cannot claim any interest, right or title adverse to that of the judgment-debtor and, therefore, they cannot come out of the scope of Order XXI, Rule 95. Delivery of possession would in no way stand in the way of making an application under Order XXI, Rule 95. Order XXI. Rule 95 is not a right given to the auction purchaser but is an obligation cast on the Court to deliver possession to such auction purchaser to whom the Court had sold the property in auction. Therefore, it is Court's bounden duty to deliver possession of the property sold by it after the sale is confirmed even by removing the person occupying the same who refuses to vacate. Such situation is apparent from the expression used in Rule 95 which envisages that :
"The Court shall.......................order delivery to be made by putting such purchaser..................in possession of the property and if need be, by removing any person who refuses to vacate the same."
8. So long purchaser is not put into possession even by removing the person in occupation who refuses to vacate, the auction purchaser has a right to make an application for delivery of possession. If such an application is made, it is duty of the Court to put him into possession. The phrase "if need be by removing any person who refuses to vacate the same" indicates that such delivery of possession be actual and physical and not symbolic. Therefore, symbolic delivery of possession does not exhaust the scope of Rule 95 which cast an obligation on the Court to deliver actual physical possession.
9. Therefore, it cannot be said that the second application does not He when symbolic possession is already delivered.
10. In the present case, admittedly the symbolic possession was delivered. This fact has not been disputed by the petitioner. Therefore, the question in the revision which is impugned in the present writ petition appears to have been correctly decided following the principles of law. Thus, I do not find any reason to interfere with the order dated 15th September. 1992 passed in Civil Revision No. 26 of 1984 impugned in this writ petition.
11. The writ petition, therefore, fails and is accordingly dismissed. No order as to costs.
12. Before parting with this matter, I may observe that the property having been purchased sometimes in 1964 despite lapse of long 34 years, the auction purchaser has not been able to obtain possession and one way or the other the petitioner has prevented the auction purchaser from obtaining possession, in such a situation learned executing court is hereby directed to deliver possession of the property by removing the persons occupying the property and refusing to vacate, within a period of three months from the date, a certified copy of this order is produced before the executing court.