DHARMALINGA THEVAR Vs. THAYUMANA THEVAR

JUDGEMENT

(1.) IN these two civil revision petitions, a small point arises. Though the cause can be disposed of an the ground of de minimus non curat lex, vet as third party's rights are involved. I am incline to go into it. In a small cause suit, one dharmalinga Thevar obtained a decree against Thayumana Thevar, and in execution thereof attached the bulls belonging to the judgment debtors. The bulls were attached by the Amin in due process of execution any was entrusted with the decree holders. Thevar executed a surety bond for production of these two bulls at any time when called upon to do by the court. The judgment-debtor paid off the suit amount on 3-7-1973, and sought for the release of the bulls. The court took some time for passing an order to raise the attachment, and actually the order releasing the bulls from attachment was made on 10-71973, the judgment-debtor has now come forward with an application under S. 47, read with Ss. 144, 145 and 151, C. P. Code, for the recovery of a sum of Rs. 10 per diem as compensation for the deprivation of the use of the bulls after he has satisfied the decree as above. The court below granted such compensation to the judgment-debtor Thayumana Thevar for the period commencing from 37-1973 ending with 15-7-1973, which was the actual date when the bulls were released and handed over to the judgment-debtor. In all, it granted a sum of rs. 130 as such compensation.

(2.) THE surety Kandaswami Thevar in turn, whilst the above proceedings were in progress, filed another application under S. 47, C P. C. , stating that he had to be reimbursed for the feeding charges of the bulls, which were admittedly in his custody from 3 rd to 15 July, 1973. He claimed a sum of Rs. 45 towards such feeding charges. The courts below after having granted the compensation of Rs. 130 to the judgment-debtor, denied the relief to the sureties who were admittedly in custody of the bulls between to 15th July, 1973.

(3.) THE question is how to adjust the equities as between the parties. That compensation has to be paid to the judgment-debtor for the deprivation of his right to use his own hulls after he has fully paid off the decree amount is a sustainable and just request. But the question is as to what is the period to which he is entitled to relief. No doubt, he paid off the decree amount on 3-71973. But the court had passed the order raising the attachment only on 10-71973. As acts of court cannot prejudice a litigant and as without an act of court, the release of the bulls cannot be made and in these two events run concurrently and equities had to be adjusted in the above set of events and circumstances, it appears to me that the judgment-debtor can only ask for compensation for the deprivation of his right to use his own bulls only from 107-1973 and ending with 15-7-1973. He would be, therefore, entitled on his own rate of calculation to a sum of Rs. 60 and not Rs. 130. To this extent, C. R. P. No. 693 of 1974 is allowed.