JUGAL KISHORE Vs. DEONARAYAN

JUDGEMENT

(1.) THIS revision petition arises from the appellate order passed in execution proceedings.

(2.) A decree for eviction of certain premises was passed in favour of the decree-holder Deo Narayan and against the judgment-debtor Jugal Kishore. In execution of that decree, the decree-holder was put into possession of part of the premises on 4. 11. 1970 and on 9. 11. 1970 the decree-holder moved an application that the judgment debtor on the night intervening 8th and 9th November, 1970, had removed certain permanent fixtures, including 30 to 40 tin-sheets. He prayed that an inquiry into the removal of fixtures may be made and the judgement-debtor may be bound down not to remove the fixtures. On this application on 10. 11. 1970 a restraint order was passed by the executing court, whereby the judgment-debtor was directed not to remove any thing, which is permanently fixed in the premises and it was also ordered that if any thing belongs to him, he can remove it only after inquiry. For the remaining part of the premises the warrant of possession was executed and the decree-holder was put into possession thereof on 10. 11. 1970. The Sale Amin in his report dated 10. 11. 1970 stated that the judgment-debtor had removed Chhapar of Chhinas etc. , which were permanently fixed; prior to their visit of the spot for delivery of possession of the remaining part of the premises. The decree-holder then submitted an application on 14. 8. 1971, in which he stated that the judgment-debtor before delivery of possession of the property, has damaged the property and despite restraint order of the court, removed the permanent fixtures. A statement of the permanent fixtures removed along with their total valuation amounting to Rs. 5,450/- was appended with the application He prayed that the articles removed be got from the judgment-debtor and at his expenses he property may be repaired or in case the judgment-debtor does not pay the necessary expenses, the decree-holder may be allowed to get the property repaired at the expense of the judgement-debtor and the expenses so incurred may be allowed to be recovered from the judgment-debtor.

(3.) AFTER considering the necessary submissions on the above contention, I am of the opinion that in this revision petition the appellant cannot be allowed to raise such an objection for the first time. It is now too late in the day to raise this point. The only contention, which was advanced before the first appellate court, was that the appeal was not maintainable, as the final order was not passed by the executing court. The objection relating to non-maintainability of appeal on account of non-production of certified copy of the decree, was not raised, though I may state that Labhmal's case does lay down that in the absence of the certified copy of the decree, order under Sec. 47, C. P. C. , is not appealable. The appeal against an order under Sec. 47, should be accompanied with a copy of the decree. The case, on which reliance has been placed by Shri Parmatma Sharan does not, in my opinion, deal with this question, so it is not of any assistance.