Marath Sivaraman Nair and Another vs Seshu Pattar and Others

We are already of opinion that the Lower Courts were right in disallowing appellants'' claims for delivery of an additional extent of land and for

recovery of full profits instead of michavaram.

A more difficult question relates to their claim for damages on account of respondents'' failure to deliver up documents relating to the mortgaged

property as directed in the preliminary and final decrees. The documents are not named in the decrees.-The preliminary decree simply directs that

Defendants 1 to 3 shall deliver up to the plaintiffs or such persons as they appoint all documents in their possession or power relating to the plaint

property"". The final decree directs ""that the defendants do deliver up to the plaintiffs the documents which under the preliminary decree they are

bound to deliver up.

In their execution petition appellants (plaintiffs) demanded the delivery of eight specified documents as relating to the plaint property, and asked

for delivery or in default payment to them by defendants of Rs. 8,550 as damages.

Defendants denied possession of these documents. They say that No. I in the list (the most important) was either never given to them, or, if it

was, it must have been given back: and that the others are either lost or filed in court.

Plaintiffs do not now contend that these documents are now in the possession or control of defendants : but simply argue that defendants are

bound to produce them, and are bound to pay damages for non production.

We must proceed on the footing that the documents are not now in defendants'' possession and control, and consider'' whether plaintiffs are

entitled to damages in execution on account of defendants'' failure to carry out the instruction of the decree.

Appellants'' vakil relies on Section 51 of the Civil Procedure Code, which authorizes a court to execute its decree (a) by delivery of any

property specifically decreed; . . . . or (e) in such other manner as the nature of the relief granted may require. In fact this seems to be the only

provision of the Code which can be of service to him. He does not now rely on O- 21, Rule 31 quoted before the Lower Appellate Court; and

Order 20, R 10, to which he refers us is really against him. It says:

Where the suit is for moveable property and the decree is for the delivery of such property, the decree shall also state the amount of money to be

paid as an alternative if delivery cannot be had."" If this rule can be applied at all to the present case, it indicates that the decree is defective in that it

does not specify the amount to be paid : and, as it stands is incapable of execution in this particular.

Returning then to Section 51 of the CPC it seems to us that, even apart from the objection that the decree in the absence of specification of the

documents to be delivered is too indefinite for execution (Vide Muddyar Chaud Shaha v. Gobind Chandur Guha ILR 10 Cal. 1092 Clause (K)

cannot be taken as authorizing a court to read into a decree a supplementary or alternative relief which is not there. That is what appellants'' prayer

amounts to. We are fortified in this view by the judgment of this Court in Subbaraya Iyer v. Padmanabha Vadhyar (1901) 12 M.L.J 63. That

seems to be a precisely, similar case, except that it was sought to make the mortgagee judgment-debtor give security for the value of the property,

instead of paying damages. It was held that in the absence of a direction in the decree to this effect, it could not be done. If a judgment debtor

cannot be made to give security, it seems to follow a fortiori that he cannot be made to pay damages.

This is the only Indian case quoted to us. Appellant refers us to two English cases in Brown v. Sewell 22 L.J. Ch. N.S. 1063 and Hornby v.

Matchan 17 L.J. Ch. N.S. 471 as showing that in England a mortgagor is entitled to compensation from his mortgagee for loss of title deeds. This

is doubtless so; and we are far from saying that in India also he would not have a remedy by way of a separate suit for damages or, even under the

mortgage decree where the latter contained provision for it.

But where the decree provides no alternative relief of this character, we must hold that the court cannot grant it by way of execution.

The Appeal is dismissed with costs.