POOMALAI Vs. RAMALINGAM

JUDGEMENT

(1.) THIS appeal is directed against the decision of the lower appellate court awarding a damage of Rs. 750 in an application under S. 47, C. P. C. and reversing the order of the trial Court rejecting the respondent's claim.

(2.) THE appellant herein executed a sale deed in favour of the respondent in relation to certain house property on 7-7-1967. However, he refused to register the sale deed. Therefore, the respondent had the sale deed compulsorily registered on 18-10-1967. Thereafter to recover possession of the property from the appellant, the respondent filed O. S. No. 121 of 1969 which was one for declaration of his title to the property and for recovery of possession of the same. The said suit was resisted by the appellant but it was ultimately decreed on 10-11-1970. At the time of the passing of the decree the appellant was granted four months' time for putting the respondent in possession of the property. Since possession was not given within the said period of four months, the respondent put the decree in execution and actually took possession of the property under a delivery receipt Ex. A-1. At the time of taking delivery he said to have found that the roof of the house has been removed and that even the walls were found dilapidated. Thereafter he issued a notice to the appellant under Ex. A-2, on 19-4-1972, claiming Rs. 2,000 as damages for the loss caused to the property by the respondent subsequent to the date of the decree. Under Ex. A-3, the appellant denied his liability for the damages claimed stating that he did not cause any damage to the property that the house being 80 years old, the roof came down by natural cause and that for such natural cause he was not responsible at all.

(3.) SUBSEQUENTLY the respondent filed E. A. 617 of 1973 under Sec. 47, C. P. C. claiming a sum of Rs. 2,000 as damages, Rs. 1,500 being the value of the materials removed by the appellant subsequent to the date of the decree and rs. 500 being the cost of construction of the superstructure as it stood on the date of the decree. The said application was resisted by the appellant on two grounds- (1) that he has not caused any damage to the house either from the date of the sale or from the date of the decree and, therefore, the respondent is not entitled to claim any damages in this regard and (2) that the respondent's claim for damages in the circumstances of the case cannot come within the scope of S. 47 of the Code.