M K KURUVILLA Vs. M S JOSEPH

JUDGEMENT

(1.) The appeal arises in execution, the appellant before us being the defendant judgment - debtor and the respondent the plaintiff decree holder. The suit was filed on 16th January, 1954 for recovery of the mortgage money by sale of the mortgage property and a decree for sale was passed on 23rd January, 1959. Pending suit the Kerala Agriculturists Debt Relief Act of 1958 came into force on 14th July, 1958. After decree the decree holder filed E.P. No. 42 of 1959 on 4th August, 1959 for execution of the decree by sale of the property and notice thereof was issued to the judgment - debtor. The judgment - debtor thereupon filed C.M.P. No. 84 of 1960 on 6th January, 1960 raising his objections to the execution of the decree. One of the objections was that the judgment - debtor was entitled to damages for the demolition, of a shop-building, which existed on the property at the time of the mortgage. The second objection was either to direct the execution of the decree in instalments as contemplated by the provisions of the Debt Relief Act or to dismiss the Execution Petition altogether. There was another objection also, with which we are not concerned in this appeal. The lower court dismissed both the objections and allowed execution to proceed and the judgment - debtor has filed this Appeal disputing the correctness of the above order.

(2.) We would, at the outset, dispose of the question regarding damages for the demolition of the shop-building. On this point the evidence available in the case consists of the report filed by the commissioner appointed during the trial of the suit and the oral evidence adduced by one witness on behalf of the decree holder and four witnesses on the side of the judgment - debtor, one of whom being the commissioner and another the judgment - debtor himself. The evidence of the commissioner and even that of the decree holders witness establish that there was a shop-building in the suit property at the time of the mortgage and the same was not in existence at the time of the suit and this was the finding of the lower court also. But the lower court further held that the judgment - debtor did not prove that it was due to the gross negligence of the decree holder that the shop-building ceased to exist. We are afraid that in the method of approach to the question the learned Subordinate Judge was in error. When it was found that there was a building at the time of the mortgage and that the mortgage property with the building thereon was in the possession of the mortgagee and it was also found that the building was not in existence at the time of suit, the onus was on the mortgagee, who had been in possession, to show that the building ceased to exist due to natural causes and not due to his gross negligence. There is no reliable evidence in the case on the side of the decree holder to show that the shop-building ceased to exist as a result of natural causes. The mortgagee, who was in possession of the mortgage property belonging to the mortgagor, was a trustee for the mortgagor and he was bound to inform the mortgagor if the building had fallen down due to natural causes. In the absence of such notice to the mortgagor the onus is on the mortgagee to prove that it was not due to his gross negligence that the building ceased to exist. On this question there are two recent decisions of our High Court. The first case is Nani Kunjukrishnan v. Padmanabha Pillai Krishna Pillai, 1958 KLT 645 in which a Division Bench of this Court held:

(3.) Coming to the quantum of damages we are of the opinion that the onus is on the mortgagor to prove the actual damages. There is evidence on the side of the judgment - debtor that the shop-building would have cost about Rs. 300/- or Rs. 350/- at the time when it was put up and there is no evidence contra on the side of the decree holder. Therefore we would accept this figure as a fair assessment of the value of the shop-building and making some deduction for depreciation we would fix the damages for the shop-building at Rs. 150/-, which the decree holder respondent is liable to pay.