M. C. JAIN, J. - (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. A reply to this application was submitted by the judgment-debtor, in which he denied the decree-holder's case and in additional pleas, it was averred that the judgment-debtor has hot removed any article belonging to the decree-holder. An objection was also raised that such an application, as has been moved by the decree-holder, is not maintainable in the execution proceedings. The executing court framed as many as four issues. Issue No. 2 related to causing of damage to the suit property and removal of the permanent fixtures by the judgment-debtor and issue No. 2 also covered the question as to whether the decree-holder is entitled to recover a sum of Rs. 5,450/- from the judgment-debtor. Issue No. 3 was to the effect as to whether the aforesaid amount cannot be awarded in execution proceedings. The executing court heard the parties on issue No. 3 and he answered issue No. 3 against the decree-holder and expressed that the decree-holder should bring a fresh suit to claim the amount of compensation. Dis-satisfied with this finding on issue No. 3, the decree-holder went in appeal. The learned Civil Judge, Bikaner, who heard the appeal, accepted the same and reversed the view taken by the learned Munsif, Bikaner, and held that the question of compensation is covered under Sec. 47 of the Code of Civil Procedure, as it related to the execution, discharge or satisfaction of the decree and an inquiry for award of compensation on account of removal of permanent fixtures, can be conducted by the executing court under Sec. 47, C. P. C. After setting aside the order of the executing court, he sent the case back to the executing court for deciding the decree-holder's claim on merits. Dissatisfied with the order of the Civil Judge, the judgment-debtor has come up in revision before this court. I have heared Shri C. D. Mundhra, learned counsel for the petitioner-iudgment-debtor and Shri Parmatina Sharan, learned counsel for the decree-holder-non-petitioner. Mr. C. D. Mundhra, first of all contended that the appeal preferred by the decree-holder before the first appellate court, was incompetent, as no certified copy of the decree was filed along with the appeal and simply a certified copy of the order was filed. Reliance was placed by him on a decision of this Court in Labhmal v. Lalchand (1 ). With regard to this contention Shri Parmatma Sharan, learned counsel for the decree-holder-non-petitioner, submitted that firstly this objection was not raised before the first appellate court and further in view of the later decision of this Court in Mohan Das v. Kamla Devi (2) an order passed under S. 47, C. P. C. , itself amounted to a decree, so it was not necessary to submit the certified copy of the decree at all.
(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. It is next contended by Shri C. D. Mundhra, learned counsel for the judgment-debtor-petitioner, that under Sec. 108 (h) of the Transfer of Property Act, the lessee is entitled to remove all things which he has attached to the earth whilst he is in possession of the property leased, but not afterwards and he is only required to leave the property in the State in which he received it. The lessee-judgment-debtor was within his right, if he has removed his property. It may be stated that reference to Sec. 108 (h) of the Transfer of Property Act, at this stage is not relevant. What properties have been removed and to whom they belong, are questions of fact, and on these questions of fact, no opinion can be expressed without evidence of the parties. The findings on these questions of fact would be based on evidence, which the parties are required to adduce. The simple question, which arises, is as to whether such an inquiry can be conducted under Sec 47, C. P. C. , or not or the decree-holder should be driven to have recourse to a fresh suit. Mr Mundhra submitted that such an inquiry cannot be conducted under Sec. 47, C. P. C. In support of his contention he referred to a decision of the Allahabad High Court in Smt. Mana Devi v. Malki Ram (3 ). I have perused this authority and in my opinion this authority cannot be pressed into service as on facts in that case there was no dispute between the parties that the temporary constructions were made by the sub-lessee. In the light of the facts, the learned judge observed that "the question arises whether such a controversy between the decree-holder and the judgment-debtor was one which was covered by the provisions of Sec. 47, C. P. C. Obviously, it does not relate to the execution, satisfaction or discharge of a decree. If that is so, it will not come within the four corners of the aforesaid section. " In that case reliance was placed by the learned judge on an earlier decision of the Allahabad High Court in Panchoo Jolaha v. Mohammad Ismail (4 ). In Panchoo Jolaha's case (supra) in execution of the decree cattle-shed was demolished and it was observed that in demolishing the cattle-shed, the court officer and the decree-holder were not carrying out either the orders of any court or the terms of any decree. For the act of tort committed by them, the only remedy available was a suit and not an application under Sec. 47. Mr. Parmatma Sharan, learned counsel for the decree-holder-non-petitioner, referred to clause (m) of Sec. 108 of the Transfer of Property Act and submitted that the lessee was bound to restore the property in as good condition as it was it the time when the lessee was put in possession and when the property is not restored in that condition, the decree-holder has a right to claim compensation in execution of the decree for eviction. In support of his contention he referred to some case law. ;