ORDER.- This appeal is directed against the decision of the lower appellate Court awarding a damage of Rs. 750 in an application under section 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 7th July, 1967. However, he refused to register the sale-deed. Therefore, the respondent had the sale-deed compulsorily registered on 18th October, 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 10th November, 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 Exhibit A. 1. At the time of taking delivery he is 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 Exhibit A-2 on 19th April, 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 Exhibit 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. No. 617 of 1973 under section 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 section 47 of the Code.

4. The trial Court held that the respondent had not established that the appellant removed any materials with a view to cause any wrongful loss to the respondent subsequent to the date of the decree and that even otherwise damages for the loss caused to the property cannot be claimed in an application under section 47 of the Code.

5. On an appeal by the respondent, the lower appellate Court, however, disagreed with the view of the trial Court on both these questions. On the question of maintainability of the application under section 47 claiming damages for loss caused to the property, the lower appel late Court felt that the said application is maintainable On merits also the lower appellate Court held that the respondent has made out his case for damages in a sum of Rs.750. The decision of the lower appellate Court has been challenged by the appellant in his appeal.

6. According to the learned counsel, the lower appellate Court is in error in holding that the respondent’s application claiming damages will be maintainable under section 47 and the proper remedy for the respondent, if at all, is to file a. separate suit for the purpose. The learned counsel for the appellant relies on a Bench decision of this Court in Ramu Shettithi v. Maniappa Shettithi 1 wherein Sadasiva Iyer and Moore, JJ., had held that as regards damages for the judgment-debtor’s alleged negligence in having allowed the decreed house to be burnt down, it could be dealt with in execution of the decre

Click Here to Read the rest of this document