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 judgment-debtor may be bound down not to remove the fixtures. On this application on 10.11.70 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 Chapper 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, 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 does not pay the necessary expenses, the decree holder may be allowed to get the property repaired at the expense of the judgment-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 not removed any articles 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 Section 47 of the Code of Civil Procedure, as it related to the execution discharge of 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 Section 47 CPC. After setting aside the order of deciding the decree holder's claim on merits. Dis-satisfied with the order of the Civil Judge, the judgment debtor has come up in revision before this Court.
(3.) I have heard Shri C.D. Mundhra, learned counsel for the petitioner judgment-debtor and Shri Parmatma Sharan, learned counsel for the decree holder non-petitioner.;