Radhabai and Another vs Gango Bai

Siddiqi, J.—This is a suit between two sisters. One of the sisters, the Plaintiff, got a decree for delivery of certain specific movable property (Jewellery etc.) but in spite of her prayer in the plaint the decree did not specify the amount of the value of the articles referred in Section 288, Local Code of Civil Procedure. I mean that the values of the jeweller or the amount recoverable as such from the Defendants was not decided by the trial court on account of insufficiency of evidence and the decree was passed simply for delivery of the specific property mentioned. In execution of the decree, on failure of the Defendants, the sister and her husband, to deliver those articles, subject of the decree, the court proceeded to value these articles for the purpose of alternative procedure for the decree-holder to recover the value of the Jewellery.

The first appellate court dismissed the appeal of the judgment-debtor which was based solely on this legal ground that the Execution Court was incompetent to add to or alter the terms of the decree as they stood. An appeal was preferred to this High Court and was heard ''ex parte'' and the judgments of the lower courts were modified in one respect otherwise the judgment was upheld. Now on account of Regulation No. 1 of 1358 Fasli the second appeal in the High Court is re-opened and I have to decide the appeal ''de novo''.

The question for decision before me is whether the execution court is competent in a case like this to do something which was within the duty of the trial court. In the absence of any express provision to that effect, I would have been very reluctant to import any general authority in the executing court to add to the decree where the trial court disallowed that particular alternative relief for insufficiency of evidence. In that case, the Appellant''s contention that the execution court is not competent to go beyond the exact limits laid down by a decree even into collateral or dependent matters would have prevailed. But here we have a specific provision of the CPC dealing with a case of this kind and all those principles relating to the powers of the original court of trial and the execution court cannot be invoked to defeat a specific provision of law.

Section 58, CPC covers this case completely. It provides where the judgment-debtor has failed to carry out the decree (i.e. to deliver the movable property) the decree-holder will be entitled to such compensation found clue for non-delivery of that property according to the terms of the decree. Now this decree did not provide for this contingency and the value was not decided upon and fixed. But the later provision of the same section lays down that otherwise the decree-holder will be entitled to such an amount by way of compensation which the court finds reasonable. Now this provision naturally applies to the execution court and not to the trial court because this contingency arises only when the value of the articles has not been so fixed in the decree for the purposes of execution. I, therefore, hold that while the executing court is not competent to go into that question now arid fix the valuation of these articles which was at the time in the sole competence of the trial court but the execution court can in view of the alternative provision referred to in this section fix compensation that can be awarded in view of the conditions that have arisen for the execution of the decree.

I find similar provision is embodied in Order 21, R. 31, of the Bharat Code of Civil Procedure. It is almost similarly worded as the Local Section which reads "in other cases such compensation as it thinks fit." I therefore allow the appeal, modify the judgment of the lower courts to this extent that the execution court will proceed to determine the compensation according to the later portion of cl. 2, Section 288 and execute accordingly. The cost of this appeal will abide by the result.