VEDANAYAGAM Vs. JANAKI AMMAL

JUDGEMENT

(1.) THIS is a petition to revise the order of the learned District Munsif, Kumbakonam, in E.A. No. 223 of 1978 in R.C.O.P. No. 10 of 1973 which was an application filed by the respondent herein under Section 47 of the Code of Civil Procedure for directing the petitioner to pay to the respondent a sum of Rs. 2,690 69 with subsequent interest and costs. The question of maintainability of the application under Section 47 of the Code of Civil Procedure, had been considered as a preliminary point and against the adjudication of that question, the present civil revision petition has been filed.

(2.) ADMITTEDLY , the respondent is the owner of the building bearing door No. 24, Kasiviswanathan Koil Street, Kumbakonam. The petitioner was a tenant of that building on a monthly rental of Rs. 50 payable by first week of every Tamil month. The respondent purchased the property on 14th September, 1972, from the previous owner and the petitioner continued to remain in possession of the property as a tenant even after the purchase by the respondent. Since the respondent wanted the building for her own occupation, she applied in R.C.O.P. No. 10 of 1973 for an order of eviction. That application was allowed and the petitioner preferred an appeal in C.M.A. No. 112 of 1973, Sub -Court, Kumbakonam. That appeal was of no avail. Thereafter, the petitioner preferred civil revision petition to this Court in Vedanayagam v. Janaki Ammal C.R.P. No. 3309 of 1975 and the revision ultimately was dismissed confirming the order of eviction passed by the Courts below. It was after the dismissal of the Civil Revision Petition, the respondent filed E.P. No. 124 of 1976 in R.C.O.P. No. 10 of 1973 and took delivery of the property through Court on 31st July, 1976. According to the respondent, at the time when she took delivery. The delivery account showed that the petitioner had committed acts of waste and had caused damage wantonly to the building viz., he had removed four entrances, one almirah fixed in the wall and the planks in the almirah and also removed all electrical wirings, rafters, fence etc. The respondent claimed that in order to carry out the repairs, it would cost her Rs. 2,690 as per the estimate obtained by her. To a notice issued by the respondent on 16th August, 1977, calling upon the petitioner to pay the amount, the petitioner sent a reply setting out false and untenable contentions. The claim made therein by the petitioner, according to the respondent, was totally unsustainable and she is, therefore, entitled to maintain an application under Section 47 of the Code of Civil Procedure, as the claim of damages is one relating to and arises out of the execution of a decree. That application was resisted by the petitioner herein on the ground that he did not cause any damage to the property either want only or by removing the entrances, almirah, pillars, rafters, fence etc. Apart from denying that he had caused damage to the property as alleged by the respondent, the petitioner proceeded to state that he had made improvements to the property and had incurred expenses to the tune of Rs. 1,500 towards the same. The estimate of damages set out by the respondent and claimed by her was characterised as exaggerated and totally unreal. The contents of the delivery account were disputed and it was also stated by the petitioner that that must have been done perhaps in order to fasten liability on him. A legal objection was also raised that Section 47, Civil Procedure Code, will not apply and therefore, the respondent cannot maintain the application filed by her.

(3.) IN this civil revision petition, the learned Counsel for the petitioner contends that the decision in Poomalai v. Ramalingam : AIR1977Mad411 does not govern this case.