IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 CRP.No. 831 of 2008 --------------------------------- E.P.NO.79/89 IN OS.4/1986 of PRINCIPAL SUB COURT, KOLLAM .................... REVN. PETITIONER/IST JUDGMENT DEBTOR: VIJAYAN, KETTIDATHIL VEEDU, KOTTAPPURAM MURI, WEST KALLADA, KOLLAM. BY ADV. SRI.S.RADHAKRISHNAN RESPONDENTS/DECREE HOLDER & 2ND JD: 1. RAMACHANDRAN PILLAI, SREERANGATHU, ASRAMATHIL, MUTTAKKAL MURI, THEVELAKKARA, KOLLAM. 2. RATNAMANI AMMA, MALUMEL VEEDU, KOVILA VADAKKEMURI, THEVALAKKARA VILLAGE, KOLLAM. ADV. SRI.C.UNNIKRISHNAN (KOLLAM) FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P. Balachandran, J. -------------------------- C.R.P.No.831 of 2008 -------------------------- ORDER The first judgment debtor in O.S.No.4/86 on the file of the Principal Sub Court, Kollam is the petitioner. The first respondent/decree holder filed E.P.No.79/89 for execution of the decree passed in his favour and the court below allowing execution of the decree in part directed the petitioner/first judgment debtor to deliver all the items mentioned in Exhibit C1 report within three months from the date of decree, failing which, it was observed that his property will be attached and sold in accordance with the provisions of law. It is the said order that is assailed by the petitioner/first judgment debtor in this revision. 2. Annexure-I is the certified copy of the decree in the suit. The decree provides that the first respondent/decree holder, after paying an amount of Rs.8,000/- to the petitioner/first judgment debtor or depositing the said amount CRP 831/08 2 before court, shall get delivery of A schedule theatre and the machineries therein as also the furniture scheduled as C schedule and that the decree holder will be entitled to mesne profits at the rate of Rs.1,200/- per month from the date on which he makes the payment of Rs.8,000/- to the petitioner/first judgment debtor or depositing the said amount before court till recovery of the theatre is had and further, restraining the petitioner/first judgment debtor from demolishing the theatre or effecting alterations thereto or from removing the machineries from therein or from delivering possession of the said theatre or the land on which it is erected to anyone else. 3. The decree was passed on 31.12.1986. There was no appeal from the said decree. The first respondent/decree holder filed execution petition only on 28.3.1989, almost after two years and three months after passing of the decree. He deposited Rs.8,000/- before court only on 20.2.1989 and the CRP 831/08 3 petitioner/first judgment debtor surrendered the keys of the theatre building before court on 6.12.1989. Delivery of the scheduled property was taken by him only on 21.11.1991. It is common case that furniture was not there in the theatre, as it got destroyed because the thatching of the theatre got deteriorated and the theatre building was leaking during rains and the machineries in the theatre also got damaged to some extent by non user, efflux of time and by reason of having been left exposed to heat and rain. 4. To the specific question as to whether machineries were taken delivery of while the theatre was delivered over, counsel for the first respondent/decree holder pleads ignorance and submits that it must have been stated in the commission report, which, however, is not produced by either side. Counsel for the petitioner submits that after the decree, on two occasions, petitioner had caused notices to be issued by registered post CRP 831/08 4 to the first respondent/decree holder calling upon him to take delivery of the theatre and the articles therein, viz., on 18.1.1988 and 14.3.1988 and those notices were replied by the first respondent/ decree holder respectively on 1.2.1988 and 15.4.1988 stating that he would take delivery through court, but that he has moved the court by filing execution petition only after expiry of almost one year therefrom on 28.3.1999 and that has resulted in furniture in the theatre getting destroyed and the machineries also getting damaged to some extent, for which, the petitioner/first judgment debtor is not liable and he is not liable to pay any damages on that score to the first respondent/decree holder and is also not liable to pay the mesne profits decreed, as it is not in dispute that the petitioner/first judgment debtor has not enjoyed the benefit of use of the theatre and the articles therein, refusing to give delivery to the first respondent/decree holder. CRP 831/08 5 5. Counsel for the first respondent/decree holder has produced before me today the notices issued by the petitioner/first judgment debtor on 18.1.1988 and 14.3.1988, marked respectively as Exhibit R1(a) and Exhibit R1(c) and the replies issued thereto by the first respondent/decree holder on 1.2.1988 and 15.4.1988, marked respectively as Exhibit R1(b) and Exhibit R1(d) as also the Commissioner's report dated 15.11.1991, marked as Exhibit R1(e) and a copy of the judgment of this Court in W.P.(C)No.25336/05, marked as Exhibit R1(f). By Exhibit R1(a), the petitioner/ first judgment debtor, through his Lawyer, has informed the first respondent/decree holder that the latter has not complied with the directions in the decree despite repeated requests made by the petitioner/first judgment debtor expressing his readiness and willingness to comply with the decree and offering to give possession of the theatre with furniture and machineries and demanding the first CRP 831/08 6 respondent/decree holder to comply with the directions in the decree and to take possession of the theatre with furniture and machineries within ten days on receipt of the notice and intimating further that the first respondent/decree holder himself shall be personally liable for all the loss and expenses incurred by the petitioner/first judgment debtor. In Exhibit R1(b) reply, the first respondent/decree holder has, through his Lawyer, replied that nobody need compel his client to avail the fruits of the decree and that his client has come to understand the reason or the rationale behind the notice and that however, the first respondent/decree holder is taking necessary steps to execute the decree. It is also alleged in the said reply notice that the first respondent/decree holder has come to understand that vandon destruction and damage is caused to the furniture and machineries listed in Exhibit C1 report by the petitioner/first judgment debtor and that the CRP 831/08 7 building also is being altered with a view to cause loss to his client, the decree holder. 6. It is worthy to note that the first respondent/decree holder had no case then that the roof of the theatre building has got deteriorated or that the building is leaking and the furniture and the machineries are getting damaged or that the doors, etc. of the theatre are not there. The only allegation is that vandon destruction and damage is caused to the furniture and machineries by the petitioner/first judgment debtor and that he has also altered the building. However, the evidence that is collected on the execution side shows that no destruction or damage is caused by the petitioner/first judgment debtor by any voluntary act except that the theatre building itself got collapsed, having remained without thatching and the furniture and the machineries therein got damaged and deteriorated remaining in open weather and various climatic conditions for a long time. CRP 831/08 8 All these happened not on 1.2.1988, the date of Exhibit R1(b), but are matters got ascertained by Exhibit R1(e) commission report obtained on 15.11.1991, after more than 3½ years of Exhibit R1 (b) reply notice. 7. It is again worthy to note that Exhibit R1 (c) notice is issued on behalf of the petitioner/ first judgment debtor on 14.3.1988 to the first respondent/decree holder intimating him that bilateral obligations are imposed under the decree; that the first respondent/decree holder is at liberty to avail or not to avail the fruits of the decree in his favour, but that the petitioner/ first judgment debtor is not liable to be burdened or blamed for the loss or damage that are occasioned and being occasioned to the shed and to the movables. It was also informed to the first respondent/decree holder that if he is really interested in preventing such loss and damage being caused and to have possession of those items so as CRP 831/08 9 to have the real fruits of the decree, the petitioner/first judgment debtor is ready and willing to put him in possession thereof as and when the first respondent/decree holder desires and that if not, the shed and the movables therein shall be at the risk of the decree holder and the petitioner/first judgment debtor shall in no way be responsible for any loss or damage that may be caused. In Exhibit R1(d) reply dated 15.4.1988 issued by the first respondent/decree holder through Lawyer, the petitioner/first judgment debtor is informed that he is bound to return the theatre and other accessories in as good a condition as it was when he got possession of the same and further that the petitioner/first judgment debtor is not restrained from maintaining the building and keeping it intact. The other statements in the reply notice are irrelevant and are not established either. This shows that even as on 15.4.1988, the first respondent/decree holder CRP 831/08 10 was not prepared to make payment of the amount, which he was liable to pay under the decree, which was deposited in court only as late as on 20.2.1989, after about one more year and he wanted the petitioner/first judgment debtor to re-thatch the theatre building and to keep everything there intact to be delivered over to the first respondent/decree holder as and when he desires to take possession. 8. The first respondent/decree holder has filed execution petition to have the decree executed only on 28.3.1989, after two years and three months of the decree and he has taken delivery on 21.11.1991, almost after five years of the decree. Obviously, the reason for the furniture in the theatre getting destroyed is because of non maintenance of the theatre building in a proper condition and as on the date of issuance of notice by the petitioner/ first judgment debtor on 18.1.1988 even as per the reply of the first respondent/decree holder, CRP 831/08 11 evidenced by Exhibit R1(b), the theatre, the furniture and the machineries therein had not got destroyed. Exhibit R1(d) shows that the first respondent/decree holder wanted the petitioner/ first judgment debtor to maintain the theatre, which was not being put to use by the petitioner/ first judgment debtor, at his cost till the first respondent/decree holder moves for execution at his own sweet will and pleasure. Exhibit R1(e) mahazar and report of the Commissioner, who accompanied the Amin at the time of delivery as desired by the first respondent/decree holder before the execution court, shows that the entire furniture in the theatre had got destroyed one way or the other and that the machineries have also got rusted and whatever was available has been taken over by the first respondent/decree holder, as those were entrusted with him by the Commissioner. 9. It is worthy to remember that when a decree imposes bilateral obligations, one of the parties CRP 831/08 12 cannot avoid performance and render the subject matter of the decree to get destroyed and then ask for possession against the other party. In the instant case, the petitioner/first judgment debtor, who was bound to deliver back to the first respondent/decree holder the theatre, furniture and the machineries therein, cannot be treated in law as a Trustee to hold it maintaining it in its proper condition till the first respondent/decree holder moves at his own sweet will and pleasure to have the decree executed. This is a case where, despite the petitioner/first judgment debtor offering to give delivery in compliance with the decree, the first respondent/decree holder was avoiding taking delivery with a view to claim damages from the petitioner/first judgment debtor. The first respondent/decree holder cannot be allowed to have such undue benefit over a judgment debtor, who was repeatedly offering and requesting the decree holder to take over possession of the CRP 831/08 13 theatre with furniture and machineries therein as was decreed by the court below. 10. The argument of the counsel for the first respondent/decree holder is that the decree holder is entitled to move for execution at any time within twelve years till the decree gets barred. The submission cannot, but, in the circumstances of the case, be treated as an adamant stand taken for a “pound of flesh”. In the circumstances of the case, I cannot, but, repel the contentions of the first respondent/decree holder and hold that the petitioner/first judgment debtor is not liable for any damage suffered by the decree holder on account of his own laches and wilful refusal to take delivery despite being called upon to take delivery of the theatre shed with furniture and machineries therein. As observed by the court below, this is a case, where damages cannot be quantified either, as there is no valuation of the properties in Exhibit C1 report dated 26.8.1982. As per Exhibit R1(f) CRP 831/08 14 judgment in W.P.(C)No.25336/05, filed by the first respondent/decree holder assailing the order of the execution court holding that he is entitled only to realise the mesne profits from 20.2.1989, the date of deposit of the amount which the decree holder was bound to pay, till 6.12.1989, the date on which the keys of the theatre building was surrendered by the petitioner/judgment debtor before court. The said order produced in the said writ petition as Exhibit P1 was quashed by this Court observing that it is not known how by efflux of time the machineries and furniture were destroyed as found by the execution court and that it is a matter which should have been considered by the execution court and directed the execution court to consider the execution petition afresh and dispose of the same in accordance with law for the reason that what was produced in the said writ petition was only Exhibit P1 order and not the Commissioner's report, which was made the basis for the court CRP 831/08 15 below to find that the machineries and furniture were destroyed by efflux of time. It is after the said remand that the execution court has passed the impugned order on 23.7.2008 directing the petitioner/first judgment debtor to deliver all the items mentioned in Exhibit C1 report within three months from the date of decree, failing which his property will be attached and sold in accordance with the provisions of law. I fail to understand the logic and relevancy of the order directing the petitioner to deliver all the items mentioned in Exhibit C1 report within three months from the date of decree, when the decree was passed as early as on 31.12.1986 and the court below was passing the impugned order on 23.7.2008. Further, by the impugned order, the execution court has ordered that the property of the petitioner/first judgment debtor will be attached and sold in accordance with the provisions of the decree when its finding is that though the first respondent/decree holder has CRP 831/08 16 claimed Rupees Five lakhs as compensation, there is no acceptable or convincing evidence to substantiate that claim and that the evidence tendered by PW1 alone is not acceptable and that there is also nothing to show that Rs.2,80,000/- is required for renovating the theatre and the Projector, as no scrap of paper has been produced by the first respondent/decree holder to show that so much is the cost incurred for acquisition of Projector and machineries. Without any compensation assessed, no court can order that the property of the petitioner/first judgment debtor will be attached and sold in accordance with the provisions of law. 11. Thus, by all means, the impugned order of the court below dated 23.7.2008 deserves to be quashed and I do so. The first respondent/decree holder having miserably failed to establish the damages suffered by him, despite opportunity given in the matter by a remand of the case vide Exhibit CRP 831/08 17 R1(f) judgment of this Court in W.P.(C)No.25336/05, he is not entitled to get any amount by way of damages from the petitioner/judgment debtor. This civil revision petition is, thus, allowed. 12th December, 2008 (K.P.Balachandran, Judge) tkv