Balvantrav Oze vs Sadrudin on 22 March, 1887

Bombay High Court
Balvantrav Oze vs Sadrudin on 22 March, 1887
Equivalent citations: (1889) ILR 13 Bom 485
Author: C Sargent
Bench: C Sargent, N Haridas


Charles Sargent, C.J.

1. The question in this case arises out of a suit brought by the appellant to recover possession from the defendant and others of 17,000 teak rafter or the value of the wood as damages, on the ground that they had out them illegally in his forest. The Subordinate Judge passed a decree in his favour on 31st July 1879, and gave him the rafters, or, as damages, Rs. 3,001. In appeal this decree was reversed on 3rd February 1882, and the plaintiff’s claim rejected. The decree of the Appellate Court was confirmed by the High Court on 4th July 1883. In the meantime, on 1st November 1879, the rafters had been handed over to the plaintiff, who subsequently sold them for some Rs. 2,700 in March 1880. On 29th November 1883, the defendant applied to the Subordinate Judge to have the rafters restored to him, or to be paid their value, alleged by him to be Rs. 13,325. The Subordinate Judge, although thinking that the rafters were worth more than Rs. 5,000, only awarded to defendant Rs. 5,000, on the ground that that sum was the limit of value of a suit within the jurisdiction of the Court. On appeal the District Judge held that the Subordinate Judge was not so restricted, and awarded Rs. 9,047-8-0 in place of Rs. 5,000.

2. It has been contended before us that the District Judge was wrong in holding that a suit was not necessary, and that the claim to restitution could be asserted in execution of the decree of the High Court confirming the decree of the lower Appellate Court. That this objection is untenable is shown by the language of Section 583 of the Code of Civil Procedure, which expressly provides for any benefit (including restitution or otherwise) to which the successful party may be entitled under the appellate decree being given in execution of the decree. Had it been intended to confine the procedure to the case in which restitution was provided for by the decree itself, there would apparently have been no necessity for expressly mentioning it. As to the objection that the Subordinate Judge could not award more than Rs. 5,000 in execution, because the jurisdiction of the Court in original suits was limited to that sum, we need only refer to Lakshman Bhutkar v. Babaji Bhutkdr I.L.R. S. Bom. 31 followed in Sadashiv Vitahji v. Ramji Krishna Printed Judgments for 1885 p. 180 as authorities that the jurisdiction continues in all matters in execution, and is not ousted by the circumstance that the value of the question in execution exceeds the limit of suits within the Court’s original cognizance.

3. Passing to the amount of damages awarded by the District Judge, he has proceeded, and we think correctly, on the principle of ascertaining the loss sustained by the defendant by his rafters having been attached by the plaintiff on 7th April 1877; and in ascertaining that loss he was doubtless right in holding that the sum at which the rafters were sold by the plaintiff in 1880 was only a piece of evidence, and but of small value, in determining what was the real question in the case, viz., the value at which the rafters would have sold in the market in April 1877. It is plain that the plaintiff, who sold the rafters by private contract, would care but little what they sold for, provided the price covered the loss of the trees as they stood in the forest. But little reliance could, therefore, be placed on the price at which he Bold. The District Judge has taken a mean between the lowest price, Rs. 65 per hundred, mentioned by the appellant’s witnesses, and the highest, Rs. 75 per hundred, mentioned by the respondent’s witnesses, and thus arrived at Rs. 70 per hundred. This, we think, is a fair way of dealing with the evidence, and gives Rs. 9,047-8 as the price at which the respondent could have sold the rafters in 1887. It was urged, in argument, that the District Judge had been influenced in determining the value by his assumption that it had cost the respondent, as he alleged, Rs. 5,500 to cut and carry the wood; whereas the Rs. 5,500 so mentioned included, it was said, the cost of other rafters besides those in question. The Court alluded to this sum to show that the price at which the appellant sold could not be a reliable guide, but the price the Court ultimately arrived at as the fair one, was determined quite independently of what respondent had said as to the cost of cutting and carrying the wood. It was, lastly, urged that respondent was estopped from claiming more than what he had stated to be the value of the rafters in the appellant’s suit, viz., Rs. 25 per hundred. But it is plain he was then speaking of the value of the wood which was all that appellant could claim as the owner of the trees.

4. We have been asked by respondent to allow interest on the value of the rafters; but interest was not claimed by the darkhast, nor does the circumstance of its not having been awarded form one of the cross-objections.

5. We must, therefore, confirm the order of the Court below with costs on the appellant.

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