IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS
TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933
CRP.No. 824 of 2002(E) ---------------------(ORDER IN E.A. 201 of 2001 in E.P.112 OF 1998 IN OS.590/1988 of ADDL.MUNSIFF COURT, NEDUMANGAD) ....................
REVN. PETITIONER: PETITIONER/1ST JUDGMENT DEBTOR/1ST DEFENDANT:
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PATHUMAL BEEVI, D/O.AISHYA BEEVI, THADATHARIKATH PUTHEN VEEDU, PANNIKKALA, MEENANKAL, KOTTAKKAKOM MURI, ARYANAD VILLAGE.
BY ADV. SRI.R.S.KALKURA
RESPONDENTS: CR.PTNRS./D.HOLDER & 2ND J.DEBTOR/PLNF.& 2ND DEFNT
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1. CHELLAMMA, D/O.ARUALI, ROADARIKATH PUTHENVEEDU, PANNIKKALA, KOTTAKKAKOMMURI, ARYANAD VILLAGE (DIED).
2. CHELLAMMA BABY,ROADARIKATH PUTHENVEEDU, PANNIKKALA, KOTTAKKAKOMMURI, ARYANAD VILLAGE.
3. THAMPI NESAN, ROADARIKATH PUTHENVEEDU, PANNIKKALA, KOTTAKKAKOMMURI, ARYANAD VILLAGE.
4. THAMPI PONNAN, ROADARIKATH PUTHENVEEDU, PANNIKKALA, KOTTAKKAKOMMURI, ARYANAD VILLAGE.
5. THAMPI BABU, ROADARIKATH PUTHENVEEDU, PANNIKKALA, KOTTAKKAKOMMURI, ARYANAD VILLAGE.
6. MEPPETHU THAMPI,
ROADARIKATH PUTHENVEEDU, PANNIKKALA, ...... DIED KOTTAKKAKOMMURI, ARYANAD VILLAGE.
R6 DIED AND RESPONDENTS 2 TO 5 ARE HER CHILDREN AND AS LEGAL REPRESENTATIVES OF R6. NO OTHER L.REPRESENTATIVES TO BE IMPLEADED. THE FACT IS RECORDED AS PER ORDER DT.28.5.08 ON CRP 824/2002.
RESPONDENTS 2 TO 5 ARE RECORDED AS THE LEGAL HEIRS OF DECEASED 1ST AND 6TH RESPONDENTS AS PER ORDER DT.29.1.2009 ON CRP.
ADV. SRI.B.RAGUNATHAN FOR R2,3 & 5 SRI.G.S.MOHANDAS FOR R2, 3 & 5 SRI.G.GOPALAKRISHNA PILLAI FOR R2, 3 & 5
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON 15/11/2011 PASSED THE FOLLOWING:
## **M.L.JOSEPH FRANCIS J.,**
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Dated this the 15[th] day of November, 2011
## **ORDER**
This Civil Revision Petition is filed by the petitioner/ first judgment debtor/first defendant in E.A.201 of 2001 in E.P. No. 112 of 1998 in O.S. No. 590 of 1988 on the file of Additional Munsiff's Court, Nedumangad.
2. E.A.201 of 2001 is an application filed by the first judgment debtor for appointing a commissioner for the purpose of ascertaining value of improvements under order 26 Rule 9 C.P.C.
3. The facts of the case as mentioned in the C.R.P. is briefly as follows : The suit was instituted by the plaintiff/ respondent herein for redemption of mortgage. A decree was passed on 11.10.1991 directing redemption of the property on deposit of mortgage amount of Rs.1,000/- plus value of improvements of
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Rs.6,784.03. Against the decree and judgment an appeal was filed as A.S. No. 72 of 1992 wherein it was directed that the said amount was to be deposited within three months from the date of judgment passed on 18.2.1997. In pursuance of the said decree the decree holder filed an E.P. No. 112 of 1998 for delivery of possession. The revision petitioner filed an application for issue of a commission for the ascertainment and value of improvements till date of eviction. The revision petitioner contended that the commission who had ascertained the value of improvements was on
1.4.1990. After his report there was changes in the value of improvements in the plaint schedule property. Items 1 to 3 in 'B' list of commissioner's report were not yielding trees at that time. Subsequently those trees became yielding trees and therefore its value was to be ascertained as yielding trees. Similarly there was change in value of items 4 and 23 due to change of conditions. Similarly the 1[st] judgment debtor had improved the building in the decree-scheduled property expending huge amount. Therefore the Revision Petitioner was entitled to realise the said amount and
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hence it was essential for ascertaining the value of improvements carried out by the revision petitioner subsequent to 1.4.1990.
4. The learned Munsiff, on considering the matter dismissed the commission application as not maintainable. Against that order, the petitioner filed this Civil Revision Petition.
5. Heard learned counsel for the revision petitioner.
6. At the time of argument, learned counsel for the revision petitioner raised the following contentions :
(i) The Court below has totally misinterpreted and misconstrued sub Section 3 of Section 5 of the Kerala Compensation for Tenants Improvements Act, 1958.
(ii) The lower Court failed to appreciate the fact that Section 5(3) of the said Act makes it mandatory for the executing court to assess subsequent improvements and adjudge the same and vary the decree in accordance with the said order.
(iii) The observation of the trial Court that compensation for improvements effected during the contract of tenancy alone and on the deposit of mortgage money the claim
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ceases to exist is totally incorrect.
(iv) The Court below failed to appreciate the fact that the commissioner had visited the property on 1.1.1990. The mortgage money was fully deposited only in the year 1998. Even assuming that the mortgagee mortgagor relationship terminates with the deposit of mortgage money the lower court failed to appreciate the fact that the tenant/ revision petitioner was entitled to the value of improvements up to at least the date of deposit of the mortgage money, which was nearly seven years after the 1[st] commission report.
(v) The lower Court failed to appreciate the fact that even assuming the fact that the mortgagee- mortgagor relationship gets terminated and the deposit of mortgage money and value of improvements, the court below failed to appreciate the fact that subsequent change in the value up to the date of deposit where the mortgage relationship continues the tenant is entitled to the value of the same.
7. Learned counsel for the revision petitioner invited my
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attention to the decision reported in **Salma Beevi v. Nalini** (2005 (3) KLT 878). In that case, while dealing with the relevant provisions contained in compensation for Tenants Improvements Act 1958 (Kerala), it was held that:
“The mortgagee/tenant is entitled to remain in possession till compensation for improvements due is paid, notwithstanding the determination of the tenancy, until eviction in execution of the decree. If he had effected no improvements until the time of the determination of tenancy, he would not be entitled for compensation for improvements and continue in possession after the determination of the mortgage. In case he had effected improvements by the time of the determination of the mortgage, he would be entitled to remain in possession and hold as tenant subject to the terms of his lease or mortgage. S.5(3) enables him to ask for revaluation of the improvements subsequent to the date up to which the compensation of improvements has been adjudged in the decree, and the same shall be determined by the Court executing the decree and the decree shall be varied in accordance with such revaluation. S.5(3)
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read with S.4(1) indicate that the revaluation of the improvements subsequent to the adjudication of the value of the same at the time of the redemption of mortgage is envisaged and that too only in the case where he was entitled for compensation for improvements that was in existence at the time of the termination of mortgage. The right of the tenant in this regard will be confined to the improvements effected by him prior to the date of the determination of the mortgage. i.e., revaluation or reassessment, with reference to the condition of such improvements at the time of eviction. Hence I find that the revision petitioner/ tenant in the instant case is entitled to the benefit of S.4(1) read with S.5(3) and the Court is bound to allow the application for commission to revalue the improvements, confining the same to the improvements that were in existence as noted by the previous Commissioner.”
8. In view of the principles laid down in the above cited decision, I am of the view that E.A. No. 201 of 2001 has to be allowed. Accordingly this C.R.P. is allowed. The order dismissing
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E.A. No. 201 of 2001 is set aside and that E.A. is allowed. The execution Court will appoint an Advocate Commissioner to reassess the value of the improvements that were in existence as noted by the previous Commissioner. The parties will appear before the Court below on 3.1.2012.
**M. L. JOSEPH FRANCIS, (JUDGE)**
dl/
