PHOOL KUER Vs. MANOHAR MAL

JUDGEMENT

(1.) THIS is an appeal from an order passed by a Civil Judge, Agra, directing the appellant-judgment-debtor to pay Rs. 5,425/- to the respondents-decree-holders. The appeal arises in the following circumstances :

(2.) IN 1936 the respondents' mother, Srimati Pem Kuer, instituted a suit for possession over property including two houses, one situated in village Semra and the other in village Kheria; the suit was decreed with costs by this Court on appeal on 26-10-1943. On 16-11-1943, she applied for execution of the decree through delivery of possession over the property. The appellant wanted to file an appeal against the decree to the Privy Council and on her furnishing security for the due performance of the decree under Order 45, Rule 13, Civil P. C. , this Court stayed execution of the decree on 3-1-1944. In August, 1947, the security furnished by the appellant was found to be insufficient. Oil 20-8-1947, Pem Kuer applied for execution of the decree stating that the appellant was not going to furnish security and alleging that she (appellant) was damaging the property. Pem Kuer alleged that the damage already caused to the house in Kheria was of Rs. 1,865/- and that done to the house in Semra was of Rs. 4,000/ -. She, therefore, claimed not only possession over the houses but also damages of Rs. 5,865/ -. She requested the executing court to appoint an Amin to assess the damage done to the houses and to deliver possession over them at the spot. The lower court appointed an Amin to assess the damage and deliver, possession. On 17-9-1947, Pem Kuer applied under Section 47, Civil P. C. , stating that the appellant had deposited some amount of money as security with the court, that part of it was attached in execution of the decree for costs an her favour and that after passing a formal order for Rs. 5,865/-, if deemed necessary, the balance of the deposited amount be attached and paid to her and that the appellant be ordered to pay up the balance of the amount of damages. While the matter was pending Pem Kuer died and the respondents, who are her sons, "became her legal representatives. The Amin submitted his report stating that both the houses were damaged and that the damage to the Kheria house was of Rs. 1,425/- and that to the other house was of Rs. 4,000/ -. The appellant objected to the application of Pem Kuer and the Amin's report on the grounds that she had not caused any damage to the houses, that they had not been repaired for the last thirty years, that if they were found in ruined or dilapidated condition that was due to natural causes, that she had not removed any fittings from the houses and that she herself was entitled to recover a sum of money from the respondents who had taken possession of her property which was in the houses at the time when the respondents obtained delivery of possession over them.

(3.) THE lower court held that the claim of the respondents was covered by Section 47, Civil P. C. , that the two houses were damaged by the appellant, that the respondents were entitled to recover rs. 1,425/- on account of the damage to one house and Rs. 4,000/- on account of the damage to the other and that the claim made by the appellant was not maintainable under Section 47. Accordingly it passed the order under appeal.