Modes of paying

money under decree.

257. All money payable under a decree shall be paid as follows (namely)

(a) into the Court whose duty it is to execute the decree; or

(b) out of Court to the decree-holder; or

(c) otherwise as the Court which made the decree directs.

Payment of money out of Court to decreeholder.

258. If the money is paid out of Court or the decree is otherwise adjusted to the satisfaction of the decree-holder, he shall certify the payment or adjustment to the Court whose duty it is to execute the decree; and no satisfaction of a decree in part or in whole by such payment or adjustment shall be recognized by such Court unless the payment or adjustment be certified as aforesaid. Where the decree-holder fails to certify as aforesaid, the judgment-debtor may apply to such Court for an order directing the decree-holder to certify as aforesaid, and the Court, after hearing the decree-holder, may make such order, and if the decree-holder disobeys the same, may refuse further to execute the decree. See the notes to Sec. 244. The section has been materially altered.

He shall certify.-An adjustment of a decree out of court, and not certified by the decree-holder, is of no effect, and cannot prevent execution being afterwards taken out. Bidhoo Bibi v. Keshub Chunder Baboo, 9 Suth. W. R., 462.

A petition signed and filed in court by a judgment-creditor certifying payment of the amount due to him by his judgment-debtor, is a sufficient certificate of payment under the decree in the terms of this section. Suadoollah Shaik v. Kaleechurn, 12 W. R., 358.

A letter from a decree-holder to his vakil to put in an acknowledgment into court, is not a settlement out of court certified to the court in the manner required by this section, to warrant further investigation in the matter. Thakoor Lall Missree v. Kanye

Lall Tewaree, 7 W. R., 510.

The suing on a kistbundee in court does not necessarily make it the instrument of a public adjustment through the court, within the meaning of this section.

Buksun, 7 W. R., 85.

Decrees for specific moveables, or recovery of wives.

Muddon Mohun Mittra v. Bibee Peer

259. If the decree be for any specific moveable, or for any share in a be enforced by the seizure, if practicable, of the movespecific moveable, or for the recovery of a wife, it may able or share, and by the delivery thereof to the party to whom it has been adjudged, or to such person as he appoints to receive delivery on his behalf, or by the imprisonment of the judgment-debtor, or by attaching his property aud keeping the same under attachment until the further order of the Court, or by both imprisonment and attachment, if necessary.

No attachment under this section shall remain in force for more than six months, at the end of which time, if the judgment-debtor has not obeyed the decree, the property attached may be sold, and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and pay the balance, if any, to the judgment-debtor on his application.

Decree for specific performance or restitution of conjugal rights.

260. When the party against whom a decree for the specific performance for the performance of any other particular act, has of a contract, or for restitution of conjugal rights, or been made, has had an opportunity of obeying the decree or injunction and has wilfully failed to obey it, the decree may be enforced by his imprisonment, or by the attachment of his property, or by both.

No attachment under this section shall remain in force for more than one year, at the end of which time, if the judgment-debtor has not obeyed the decree, the property attached may be sold and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit and may pay the balance, if any, to the judgment-debtor on his application.

Decree for execution of conveyances, or endorsement of negotiable instruments.

261. If the decree be for the execution of a conveyance, or for the endorsement of a negotiable instrument, and the judgment-debtor neglects or refuses to comply with the decree, the decree-holder may prepare the draft of a conveyance or endorsement in accordance with the terms of the decree, and deliver the same to the Court. The Court shall thereupon cause the draft to be served on the judgment-debtor. in manner hereinbefore provided for serving a summons, together with a notice in writing stating that his objections, if any, thereto shall be made within such time (mentioning it) as the Court fixes in this behalf.

The decree-holder may also tender a duplicate of the draft to the Court for execution upon the proper stamp-paper, if a stamp is required by law.

On proof of such service, the Court, or such officer as it appoints in this behalf, shall execute the duplicate so tendered, or may, if necessary, alter the same, so as to bring it into accordance with the terms of the decree, and execute the duplicate so altered:

Provided that if any party object to the draft so served as aforesaid, his objections shall, within the time so fixed, be stated in writing and argued before the Court, and the Court shall thereupon pass such order as it thinks fit, and execute, or alter and execute, the duplicate in accordance therewith.

Conveyance. The word is thus defined by Wharton :-" An instrument which transfers property from one person to another inter vivos, or after the death of the person transferring; the former is accomplished by deed, record, or special custom; the latter by will."

A 'conveyance' is needed at law to clothe the purchaser with rights in rem and until a conveyance has been executed, he will not be able to vindicate or recover the subject as against the seller himself. But in equity, speaking generally, the contract to sell amounts to a conveyance. See Austin, 1001-6.

Negotiable instruments.-Are those, the right of action upon which is, by exception from the common rule, freely assignable from

one to another, such as bills of exchange and promissory notes. It is essential to the negotiability of a bill between all persons, except the Government, that it should be payable to order or to bearer, or that some other equivalent words should be used, authorizing the payee to assign or transfer the same to third persons, such for example as payable "to A. or his agent." See Wharton. A cheque upon a banker may be a negotiable instrument; and has been held to be a bill of exchange within the scope of 18 & 19 Vict. C. 67. Eyre v. Waller, L. J. 29, Ex. 246.

section

262. The execution of a conveyance or the endorsement of a negotiable instrument by the Court under the last preceding Form and effect of execution of convey of the Court of may be in the following form: "C. D., Judge (or as the case may be), for ance by Court. A. B., in a suit by E. F., against A. B.," or in such other form as the High Court may from time to time prescribe, and shall have the same effect as the execution of the conveyance or endorsement of the instrument by the party ordered to execute or endorse the same.

263. If the decree be for the delivery of any immoveable property, possession thereof shall be delivered over to the party Decree for immoveto whom it has been adjudged, or to such person as able property. he appoints to receive delivery on his behalf, and, if need be, by removing any person bound by the decree who refuses to vacate the property.

The section has been greatly improved. I believe that the meaning and operation of the old section have been very generally misunderstood in this Presidency, and it is to be feared that cases still occur, perhaps not infrequently, of gross fraud and injustice being perpetrated professedly in pursuance of the provisions of that section. Where A. gets a decree against B. for the recovery as against B. of possession of an immovable, the court in execution may legally cause such possession, if it be with B., actually or constructively, or if it be with B.s alienee since suit brought, to be taken from B., or from such alienee, and to be delivered over to A. But in such case the court may not cause the possession to be taken from a complete stranger to the suit and altercation.

And the addition of the words "bound by the decree" will no doubt make this simple doctrine clear to all.

Immoveable property.-See the notes to Sec. 16.

Possession thereof.-That is, I apprehend, in actual, physical possession of the specific immovable itself or of a specific portion

thereof, as of the western half, where possession of such portion is adjudged by the decree. Symbolical possession may be given under Sec. 264 but never, I apprehend, under this section. There has been much controversy among jurists as to the precise nature of 'possession.' Savignys first work was a treatise De Jure Possessionis. Its publication led to an animated discussion; and exception was taken, amongst other things, to the notion that possession is a right.

The following excerpt from Tomkins and Jenkens Compendium of Modern Roman Law, p. 101, may usefully be perused :-" Strictly speaking, Possession is a pure matter of fact, and not a legal idea. Possession also, it should be observed, may arise as the consequence of a Right; or, on the other hand, Possession may be the causa efficiens giving rise to a Right. When it is the consequence of a Right, we speak of the jus possidendi. This idea of Possession however, is the least important one. It is only when Possession is the source and origin of a Right that we can speak of a jus possessionis. Hence it will be seen that it is not out of every Possession that a jus possessionis can arise. When, for instance, a person holds a thing in the name of another, and for a third person, a jus possessionis is inadmissible. Jus possessionis always implies the Possession of the thing for oneself. When we hold a thing in the name of another, it is simply regarded as Detention, and it is denominated" Naturalis possessio." Here there is no "animus rem sibi habendi,” and it is only when such animus exists that we can correctly speak of possession. In answer to the question, "What is Possession?" Savigny says that it is a factum and a jus-a fact and a Right. This, however, is held to be a mistake, and Possession is at present regarded as simply a fuct and not a Right. But it may, without doubt, be the causa efficiens giving rise to a Right. Possession in this case is, to speak exactly, a Fact engendering a Right."

The' possession' of the owner must not be confounded with that of another than the owner. Austin, at p. 53, says:-" If one person exercise a right residing in another, but without authority from the latter, and without authority from those through whom the latter is entitled, the former acquires, by his unauthorized or adverse

exercise, the anomalous right which is styled the right of possession.... That right is the right to possess (or to use or exercise a right) which springs from the fact of an adverse possession not beginning through violence.”

Possessio, in its primary sense, is the condition or power by virtue of which a man has such a mastery over a corporeal thing as to deal with it at his pleasure, and to exclude other persons from meddling with it. This condition or power is detention; and it lies at the bottom of all legal senses of the word possession. This possession is no legal state or condition, but it may be the source of rights, and it then becomes possessio in a juristical or legal sense." Wharton.

Possession, the state of owning or having a thing in one's own hands or power; the thing possessed. It is either actual, where a person enters into lands or tenements descended or conveyed to him; apparent, which is a species of presumptive title where land descended to the heir of an abator, intruder, or disseisor, who died seised; in law, when lands, &c., have descended to a man, and he has not actually entered into them; or naked, that is, mere possession, without colour of right." Wharton.

The well known maxim" possession is nine-tenths of the law" has a peculiar significance in this country, where good evidence commonly is so hard to obtain. It serves to impress on judges the truth that every claimant must succeed by the strength of his own title: not by the weakness of the title of his opponent who, rightly or wrongly, is in possession of the thing claimed.

In executing a 'writ of possession,' the sheriffs duty is to deliver complete possession of every parcel of land recovered by the plaintiff in ejectment, and for this purpose he may enter by force if necessary. Lush, 995.

If however an undivided portion only is recovered, the sheriff must put the claimant in possession of such portion only. Per Park, B., in Doe v. King, 6 Ex., 793.

Where the plaintiff in ejectment, as tenant in common, recovered possession of five eighths of a cottage with the appurtenances,