V. Balasubrahmanyan, J.
1. This civil revision petition arises in certain proceedings following the execution of an order of eviction obtained by a landlord against his tenant under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Under Section 18 of the Act an order of eviction shall be executed by a civil Court as if it were a decree passed by it. In this case, the landlord moved the District Munsif's Court, Nagercoil, in execution, and obtained an order for vacant possession. But since the building was found locked, he moved the Court for breaking open the lock. This order was granted. The Amin of the Court then proceeded to the building, had the lock broken open, and gave delivery of possession to the landlord But at the time of delivery of vacant possession, there were found inside the premises several items of moveable property, such as paddy and rice bags, empty jute bags, cocoanuts, pieces of furniture etc., belonging to the tenant. Since the tenant was not there at the time to take delivery of his moveables, the Amin gave them over to the landlord and another local resident who was prepared to act as surety, taking a bond from both of them for keeping the articles in safe custody pending the orders of Court for their disposal. Subsequently, the tenant apparently called upon the landlord and also the surety to return the said articles to him. On their failure to do so, he moved the District Munsif for an order directing them to return the moveables or pay him their value, which he reckoned at Rs. 3,751.25. This application was opposed by the landlord. But the learned District Munsif overruled his objections and ordered the tenant's application. While doing so, he found as a fact, that the articles in question belonged to the tenant, that custody of those articles had been taken by the landlord and his surety from the Court Amin at the time of delivery of possession of the building and that the landlord, along with his surety, had subscribed to the security bond undertaking to deliver the articles in accordance with further directions of the Court. The learned District Munsif also accepted the tenant's value of the moveables in the custody of the landlord at Rs. 3,751.25 as against their approximate valuation in the security bond at Rs. 2,100. He accordingly passed the order directing the landlord and the surety to return the articles or pay their value to the tenant.
2. The landlord appealed from this order to the Sub-Court, Nagercoil. The learned Subordinate Judge dismissed the appeal. The landlord has now brought this civil revision petition, contending that this order is not in accordance with the law. He had come to this Court once before in these very proceedings, but the matter was remanded to the Sub-Court for clarification as to whether the tenant's moveables were handed over by the Amin to the landlord or not. On remand, this issue has been determined beyond all doubt. In his order, presently under revision, the learned Subordinate Judge has recorded a finding that the Amin gave the custody of the articles to the landlord and took a bond both from him and the surety. The learned Subordinate Judge has rejected the contention that only the surety took charge of the goods and the landlord signed the security bond only as an attesting witness.
3. Before me, the landlord's learned Counsel, Mr. T.R. Rajagopalan, sought to question this finding. I am, however, satisfied that the finding is fully supported by the evidence of the Amin and other materials on record, not to speak of the landlord's own admission in certain affidavits filed by him.
4. Learned Counsel then urged that the evaluation of the goods at Rs. 3,751.25 was not justified when the security bond itself was only for a lesser sum. I am unable to entertain this contention. The question here is not about any money liability. The question is about delivery of certain moveables. The valuation of such moveables has come in for consideration only by way of grant of an alternative relief in the event of non-delivery. Hence, assuming that there was an accurate valuation of the moveables in question even at the time of the execution, that cannot now prevent the Court from going into the question of valuation for the purpose of granting the alternative relief while ordering delivery. I must, therefore, reject this contention of Mr. Rajaraman as unsound.
5. On the aspect of the landlords liability to return the goods, learned Counsel had pretty little to argue. Order 21, Rule 35(4) of the Code of Civil Procedure provides for the appropriate procedure in a case where the holder of a decree for possession of a house finds the house locked and thereupon obtains from the executing Court an order for breaking open the lock. The rule proceeds to lay down what course the proceedings should take if moveables, to which the decree-holder himself is not entitled, are found inside the premises. The rule reads as under:
If it is found at the time of delivery that there are moveables in the house to which the decree-holder has no claim and the judgment-debtor is absent, or if present, does not immediately remove the same, the officer entrusted with the warrant for delivery shall make an inventory of the articles so found with their probable value, in the presence of respectable persons on the spot, have the same attested by them and leave the moveables in the custody of the decree-holder after taking a bond from him for keeping the articles in safe-custody pending orders of Court for disposal of the same.
The Officer shall then make a report to the Court and forward therewith the attested inventory taken by him.
The Court shall, thereupon, issue a notice to the judgment-debtor requiring him to take delivery of the said moveables within thirty days from the date of the notice and in default they will be sold in public auction at his risk and the proceeds applied for meeting all legitimate expenses of custody and sale and the balance, if any, will be refunded to the judgment-debtor:
Provided that if moveable articles referred to above are perishable, the Officer shall sell them in public auction immediately, and bring the proceeds into Court. The notice to the judgment-debtor shall in such a case call upon him to receive the amount from Court within three months.
6. The record before me in this case does not show that after the landlord took custody of the tenant's moveables, which were found in the premises, the executing Court proceeded to issue notice to the tenant to take delivery. Assuming that this matter of procedure had not been gone through as contemplated by Order 21, Rule 35(4) of the Code, and that the tenant himself took the initiative in the matter when he moved the Court for return of his articles, that would not make for a difference in the substantive legal position relating to liability.
7. That liability can hardly be a matter for disputation or doubt, although I must confess I have found difficulty in putting it under 'one or other of any of the ready-to-hand pigeon-holes of the law. We no doubt start with the position that the decree-holder has custody of moveables of which he is not the owner, and, this being so he has no right to appropriate them to his own use, but he will have to restore them to their true owner. In this case, the tenant was the true owner. But he did not hand them over himself to the landlord, nor any agent or other person acting on his behalf. Nor can the decree-holder be equated to the position of a person who just finds the moveables, as a finder of lost goods, because far from their being lost by their owner, they are found in their proper place in the premises in his occupation. The Amin in charge of the execution is the person who actually hands over the goods to the decree-holder, but the Amin will be acting neither as the owner nor as the owner's agent nor as some one else entitled to proceed under the owner's authority. He is acting under the authority of the Court as a Court Officer. There is no jural relationship between the decree-holder and the Amin any more than there is, at the time of the execution, any jural relationship between him and his ex-tenant. It would seem that matters of this kind do not arise out of contract nor do they arise out of any trust, express or implied. It is difficult to say, even whether the situation fits in precisely with the requirements of any of the provisions of Chapter V of the Indian Contract Act, 1872 relating to quasi-con tracts. The closest provision might seem to be found in Section 72 of that Act but the decree-holder can hardly be described even for purposes of this section as a person to whom the articles are delivered under 'coercion.' For, if the judgment-debtor were there at the time, neither he nor the Amin would be under any compulsion to hand over the goods nevertheless to the decree-holder. Again, none of the enacted provisions in the Indian Trusts Act, 1882, relating to resulting trusts and constructive trusts can in terms, be applied to this situation. Almost all the provisions dealt with in Chapter IX of the Trusts Act are of a kind which arise out of some jural relationship between persons, and the law prefers to import to one of them an obligation in the nature of trust. It cannot be said, for instance, that the decree-holder had obtained the goods of the judgment-debtor by undue influence. It cannot be said that the decree-holder had done something where his interests and duty came into conflict, None of the group of Sections 80 to 94, inclusive, in the Trusts Act can literally apply to a situation of the kind which presents itself when execution of a decree for possession of a house leaves the decree-holder with the custody of the judgment-debtor's moveables. The same position, by the way, must apply to moveables belonging to a third party found at the time of breaking open the lock, although, surprisingly, Order 21 Rule 35(4) does not specifically provide for appropriate procedure for notifying the third party of subsequent proceedings, leaving him, apparently, to follow the quite inappropriate provisions relating to third party claims to moveables which have been attached in execution. Be that as it may, it seems to me quite clear that the law does not intend to give to the decree-holder a present of the goods which he finds inside his locked house, goods to which he cannot lay claim, while assuming vacant possession of the house. It also seems quite clear to me that so long as the goods remain in his custody he has to take reasonable care of them. This duty fairly flows from the following circumstances, namely, the goods belong to some one else, he has got custody of them only to enable him to obtain vacant possession of his house, and he has to abide by the further orders of the executing Court also is beyond doubt that the decree-holder must restore the goods to the true owner, when called upon to do so. Order 21, Rule 35(4) provides for a 30 days' notice to be issued by the Court to the judgment-debtor to obtain redelivery of the moveables from the decree holder. But this requirement as to Court notice is only for enabling the Court to sell the moveables after the expiry of the notice period without feeling any qualms The rule does not prevent the decree-holder from straightaway handing over the goods to the judgment-debtor, if there is no dispute or doubt over his ownership, even without the Court's intervention. Indeed, it would be the decree-holder s duty to do so. If he fails to do so the Court has certainly the power to compel him to do so. Indeed, the Court itself is under a duty to order restoration considering that the custody of the move able : with the decree-holder is itself but a side effect of its order to break open the lock Amidst all these considerations, we may regard the duty of the decree-holder in such cases a based on the doctrine of unjust enrichment or we may regard it as arising out of some as yet, unclassified or unnamed species fiduciary obligation; or we may regard it a that of a gratuitous, but compulsive, bailee. As for the Court's role, we may regard it a exercising its jurisdiction under the Procedure Code, or under its everpresent duty to administer the law of the land on the principles of justice, equity and good conscience. Whichever way we regard these considerations, the result must be the same; the decree-holder must be compelled to restore the moveables to the judgment debtor, or failing that, to pay their just valuation. I have no doubt in my mind, therefore, that the orders of the Courts below are not only within their jurisdiction, but entirely just, and quite in accordance with the law.
8. Mr. Rajaraman then submitted that the learned Subordinate Judge erred in law in directing the landlord to pay Rs. 300 byway of costs to the Amin. He said that there is no warrant in law for this kind of order. At the first blush, this direction as to costs made by the learned Subordinate Judge seemed to me to be peculiar. But after ascertaining the course of proceedings from the records, I am satisfied that this direction is also justified. The tenant, when he filed his application before the executing Court for return of his moveables, impleaded not only the landlord and the surety who had signed the security bond, also the Amin as party respondents. The learned District Munsif dismissed the tenant s application for relief as against the Amin, while granting it against the landlord and the surety. When the landlord appealed against this order, he might will have omitted to implead the Amin, but he did not do so. The Amin having been made a party to the appeal, entered appearance and had himself represented by counsel. In these circumstances, it seems to me that the learned Subordinate Judge was quite in order in directing the landlord to pay the costs of the Amin in the appeal. If a direction as to costs can be regarded as purely within the discretion of a Court, I must say that the discretion has been properly exercised in this case.
9. For all the above reasons, this revision petition is dismissed.