BAPNA, J. - (1.) THIS is an appeal by the judgments-debtors against the District Judge, Jaipur District, dated 27th August, 1951.
(2.) A preliminary point was raised by the office that the appeal was barred by time. The appellants' contention is that their first application for grant of copy of the order of the lower court was wrongly consigned to records, and if the time requisite for grant of copies be calculated on the basis of the first application, the appeal will be within time. On a perusal of the record. I find that the first application for copy was correctly made, and if the time requisite is calculated from the first application, the made, and if the time The appeal is, therefore, held to be within time. The respondent had obtained a decree from the Court of Ruler-in-Council. Kishangarh, on the 10th of November, 1945, for recovery of half of the jewellery sued for, which had been left by the mother of the parties. On execution of the decree, the judgment-debtors denied having any such ornaments in their possession, and the District Judge of Kishangarh held the judgment-debtors liable to pay compensation for non-delivery of specific property at the rate prevailing on 9th October, 1946, which was the first date fixed for the appearance of the judgment-debtors in execution proceedings. On appeal, this order was set aside on the ground that on convincing reasons had been given for fixing that date for the purpose of calculating the rate at which compensation was to be given to the decree-holder. That judgment also disposed of an objection of the judgment-debtors that the alternative relief of compensation not having been provided in the decree it was not executable. It was held by reference to Order XXI, rule 31, of the Code of Civil Procedure that in case the amount payable to the decree-holder as an alternative to the delivery of specific movable property was not mentioned in the decree, the court could fix compensation in execution proceedings in case the judgment-debtors failed to comply with the decree even after the attachment. The case was remanded to the court of Civil Judge, Kishangath, for a fresh decision as to what was the crucial date to be taken into consideration for the purpose of fixing compensation. The learned Civil Judge, on remand, fixed 12th February, 1951, as such date, which was the date of the order of the learned Civil Judge. The reason given was that the date by reference to which damages should be assessed should be the date of realisation of the damages, and that as in the present case it had been decided that the assessment should be done in advance, such date is to be the date of the order itself. The judgment-debtors have come in appeal. It is contended on behalf of the appellants that the defendant's refusal to share the jewellery left, by their mother had given the cause of action for the suit, and, therefor the plaintiff could only claim the alternative relief of damages either at the rate prevailing on the date of the refusal, or at best on the date when he filed the suit, because it was on the latter date that the plaintiff wanted to enforce his right. He relied on L. Tilok Chand vs. L. Damodar Dass (1) (AIR 1945 Peshawar, 5. ). That case related to the recovery of a certain quantity of wheat and the price on the date of the bond was lower than the price on the date of the institution of the suit, and the Court held the plaintiff entitled to the benefit of rising price, and allowed compensation at the rate prevailing on the date of the suit. In this case, as it happens, the price of gold and silvar has risen, and the contention of the appellants, if accepted, will result in a wrongdoer benefitting from his own wrong. It was argued that the value of the share of the articles claimed be the plaintiff was mentioned in the plaint to be Rs. 3830/-, and therefore, it would be equitable if he was allowed compensation at this rate. This value was, however for the purpose of payment of court fees. Under the law, the court-fees were to be paid according to the value of the goods claimed on the date of the suit. ' This would not form any basis for grant of compensation on non-delivery of the articles. Counsel for the respondent urged that it was on the 18th of November, 1948, that the defendants denied having the particular ornaments in their possession or power, and thereafter the court decided the question on the 12th February, 1951, and, therefore, the date on which the court directed the judgment-debtors to pay compensation was the date for the purposes of calculation of damages. Learned counsel relied on Rosenthal vs. Alderton and sons, Ltd. (l ). In my opinion the correct principle in cases of this kind, where the alternative relief available to the decree-holder is not mentioned in the decree itself, is that the date for purposes of calculation of compensation should be the date of the decree itself. In the above-mentioned English case, the suit was in detinue for the return of certain goods or payment of their value and damages for their detention. The goods formed the equipment of a barber's shop. It was contended by the defendant that the value of the articles should be calculated according to the price on the date on which the return was refused; but the Court of Appeal held that the proper date for assessment of damages was the date of judgment. Learned counsel for the respondent urged that the date on which the defendant refused to satisfy the decree should be the date for the order of fixing compensation, and the rate prevailing on that date would be the rate prevailing on the date of judgment according to this decision. In the English case certain nice distinctions have been drawn with respect to a claim in trover and a claim in detinue, and in a passage it has been mentioned that a judgment in trover is no bar to an action in detinue in respect of the same goods. These nice distinctions are not available in India, and on the principle deductible from this judgment the date of the decree would be the date, the rate prevailing on which would form the basis of compensation payable to the decree-holder, in case there has been a rise in the value of the specific movable property claimed and decreed. In case, however, there is a fall in price, the plaintiff would be entitled to claim damages at the rate prevailing on the date of the suit; and possibly at the highest rate which may be prevailing between the date of the suit and the date of the decree. This would be on the principle that the wrong-doer would not be allowed to benefit from his own wrong. The appeal is, therefore, accepted, and the decision of the lower court is modified to this extent that the date of damages payable to the decree-holder for non return of the movable property would be the rate prevailing on the date of the decree, which, in this case is 10th December, 1945. .;