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Judgment
Horace Owen Compton Beasley, Kt., C.J.—This appeal must be dismissed with costs. The Subordinate Judge in execution proceedings
arising out of a partition suit awarded the execution petitioner the sum of Rs. 750 by way of damages. The matter arose in the following way. There
was a certain property which in the partition fell to the share of the execution petitioner. Between the date of the decree and the execution
proceedings that property was deliberately damaged. The case of the execution petitioner was that the third defendant in the partition suit, who
was one of the co-sharers, at the instance of the second defendant, dliberately damaged this property, the second defendant having previously
given an undertaking that he himself would not damage the property. Presumably he was able to satisfy his conscience, if he possessed such a
thing, by getting somebody else to do the damage instead. This apparently he considered was within the terms of the undertaking and not in
violation of them. The third defendant was also a co-sharer and the position taken up by the execution-petitioner was that this property had
suffered in this way in between the decree in the partition suit and his seeking to get possession of it and he was therefore in law entitled in
execution proceedings not only to an order putting him in possession of the property but also to the assessment of the damages alleged to have
been done to the property. In his petition he, first of all, asks to be given possession of the property and, secondly, for the assessment of the
damages. The Subordinate Judge appointed a commissioner to report as to damages. We have the Commissioner''s report before us and it was
before the learned Subordinate Judge who accepted it and fixed the damages done to the property at Rs. 750 agreeing with the figure arrived at by
the Commissioner. He accordingly allowed that amount to the execution-petitioner, The objections taken before us are that the petitioner did not
ask for the payment of the damages after they had been assessed to the petitioner and that the Court had no right to make any such order.
Reliance was placed upon the decision of this High Court in Ramu Shettithi v. Maniappu Shettithi (1916) 33 I. C. 520 in support of this contention.
There is, however, a case of a later date, namely, Dhanaraja Gerji v. Parthasaradhy I.L.R.(1932) 57 Mad. 49 a decision of a Bench of this High
Court consisting of Venkatasubba Rao and Reilly, JJ., where an exactly similar point arose and was dealt with. That Bench disagreed with the
decision of the Bench in Ramu Shettithi v. Maniappu Shettithi (1916) 33 I. C. 520 and followed other cases and we think quite rightly. The Bench
in this case held that where a decree awards a person a certain property, he is entitled to get it in the state in which it was when that decree was
passed and that whether when the property was delivered it continued to be in the same state or in the meantime underwent deterioration is a
question to be determined in execution. They further held that it was not competent to the Court u/s 47(1), CPC to refer the petitioner or the
plaintiff to a suit and that such a matter as this must be dealt with in execution, the provisions of that section being mandatory. In our view, this
decision covers this case and we see no reason whatever for disagreeing with it. Following that case, we hold that the executing court was bound
to assess the damages and, having done so, awarded the damages so assessed to the petitioner.
Another objection taken was that the damages Rs. 750 awarded were excessive. We observe that no assistance whatever on the question of
damages was given by the third defendant in the lower Court. He was content to take up the position that he was not liable to pay any damages at
all. Hence it is that we only have the Commissioner''s report before us and the learned trial judge''s acceptance of that report. An appellate Court
will not interfere with the assessment of damages by a lower Court - that is particularly the duty of the trial Court - unless the trial Court has
adopted an incorrect principle or method of assessment of damages. That is not the case here. For these reasons, this appeal must be dismissed
with costs.