DAMODAR Vs. SUGANMAL

JUDGEMENT

(1.) THE appellants in this case obtained a pre -emption decree in respect of a house against the respondents. The decree directed the appellants to pay Rs. 3344 -12 -3 to the respondent Suganmal for pre -emption of the property. This amount included Rs. 144 -12 -3 which the trial Court had added to the preemption price on account of certain construction made in the house by the defendant who had purchased the property. The decree was put in execution and the appellants obtained possession of the house after paying Rs. 3344 -12 -3 to the judgment -debtor. There after the decree -holders discovered that the construction work which had been done by the purchaser -defendant and in respect of which he was given Rs. 144 -12 -3 over and above the sale -price of the transaction had been demolished by him after the passing of the decree and during the execution proceedings. The decree -holders, therefore, applied to the executing Court for payment of compensation in respect of the damage done to the property by the defendant, computing it at Rs. 144 -12 -3 which they themselves had paid to the defendant, according to the decree. The learned Civil Judge, First Class, Dewas, held that the question of compensation (sic) by the decree -holders was not one relating to the execution, discharge or satisfaction of the decree in the case and that, therefore, the appellant's application could not be entertained under S. 47 C.P.C and that their remedy lay in instituting a separate suit. This view was upheld in appeal by the Additional District Judge of Dewas.

(2.) IN my judgment, the view taken by the Courts below is wrong and this appeal must be allowed. The question whether the decree -holder can in execution claim compensation for the damage done to the property by the judgment -debtor obviously turns on the question whether the claim is a matter relating to the execution, discharge or satisfaction of the decree within the meaning of the words as used in S. 47 C.P.C. The preemption decree gave to the appellants the possession of the property in suit on their paying Rs. 3,344 -12 -3. Under that decree the appellants were entitled to get the property in suit in the condition in which it was at the time of the passing of the decree. The judgment -debtors were, therefore, under an obligation to deliver the property to the decree -holders in the same state without doing any damage to it or committing any waste. The question, therefore, of any change, or alteration in the property, or deterioration caused by any act of the judgment -debtor after the passing of the decree would clearly be one relating to the execution, discharge or satisfaction of the decree and has to be enquired into by the Court executing the decree under S. 47 of the Civil Procedure Code. In this connection, it would be pertinent to refer to the observations of the Supreme Court in para -23 of the judgment in Jai Narain vs Kedav Nath A.I.R. 1956 SC 359) that the executing Court has to see that the defendant gives the plaintiff the very thing that the decree directs and not something else, so if there is any dispute about its identity or substance, nobody but the Court executing the decree can determine it. These observations place beyond doubt the position that where as in the present case, the holder of a decree for possession of property complains of any alteration, deterioration or damage done to the property by the judgment -debtor after the passing of the decree, it is only the executing Court that can enquire into the complaint.

(3.) MR . Singh, Learned Counsel for the respondent Suganmal, submitted that what the decree -holders were claiming were a return of the amount of Rs. 144 -12 -3 which the Court passing the decree had awarded to the judgment debtor in respect of the improvement done by him to the property and not any compensation for the damage done. I do not agree. The decree -holders prayer in substance is for the compensation for certain damage said to have been done to the property by the judgment -debtor after the passing of the decree. As according to the decree -holders the damage consisted in the demolition of that very construction in regard to which the judgment -debtor was given an extra amount of Rs. 144 -12 -3, they assessed the amount of damage at Rs. 144 -12 -3. But this does not in any way make the decree -holders claim one for any alteration in the decree in so far as it gave to the judgment -debtor the amount of Rs. 144 -12 -3 for the improvement done by him. The judgment -debtor is not precluded from showing that if the damage or waste was done by him, the value of it was not Rs. 144 -12 -3 but something less.