IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 CRP.No. 178 of 2011() ---------------------------- E.P. NO.80/1979 IN OS.67/1957 OF ADDL.MUNSIFF COURT-II, NEYYATTINKARA .................... REVN. PETITIONER(S): ADDITIONAL THIRD PLAINTIFF ---------------------------------------------------------------------------- SIVAN PILLAI SADASIVAN NAIR, M.S.BUNGLOW, PUNNAKKULAM, KOTTUKAL DESOM, KOTTUKAL VILLAGE. BY ADVS. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE RESPONDENT(S): DEFENDANTS 5,8 TO 13 & 15 TO 27. -------------------------------- * *1. PADMANABHA PILLAI AYYAPPAN PILLAI, AYANIVILA PUTHEN VEEDU, KOTTUKAL, THIRUVANANTHAPURAM-695501. ( R1 TO R7 DELETED) 2. KAMALLAMMA PILLAI RADHAMMA PILLAI, PALLIVILAKATH VEEDU, KOTTUKAL, THIRUVANANTHAPURAM-695501. 3. RADHAMMA PILLAI VALSALA, PALLIVILAKATH VEEDU, KOTTUKAL, THIRUVANANTHAPURAM-695501. 4. VELAYUDHAN NAIR VENU, PALLIVILAKATH VEEDU, KOTTUKAL, THIRUVANANTHAPURAM-695501. 5. VELAYUDHAN NAIR MURALI, PALLIVILAKATH VEEDU, KOTTUKAL, THIRUVANANTHAPURAM-695501. 6. RADHAMMA PILLAI VANAJAM, PALLIVILAKATH VEEDU, KOTTUKAL, THIRUVANANTHAPURAM-695501. tss CRP. NO.178/2011 ** 7. VELAYUDHAN NAIR MURUGAN, PALLIVILAKATH VEEDU, KOTTUKAL, THIRUVANANTHAPURAM-695501. 8. KOCHAPPI NADAR KRISHNAN NADAR, THANNININNA KUZHIYANVILA PURAYIDOM, CHOWARA KOTTUKAL VILLAGE, THIRUVANANTHAPURAM-695501. * * 9. RAMAN PILLAI SIVASANKARA PILLAI, PULLARAVILAKATH VEEDU, PANDARAVILA, KOTTUKAL, THIRUVANANTHAPURAM-695501. 10. RAMAN PILLAI AYYAPPAN PILLAI, PULLARAVILAKATH VEEDU, PANDARAVILA, KOTTUKAL, THIRUVANANTHAPURAM-695501. 11. SIVASANKARA PILLAI MANIKANTAN NAIR, PULLARAVILAKATH VEEDU, PANDARAVILA, KOTTUKAL, THIRUVANANTHAPURAM-695501. 12. KALYANI PILLAI KARTHI PILLAI, PULLARAVILAKATH VEEDU, PANDARAVILA, KOTTUKAL, THIRUVANANTHAPURAM-695501. 13. RAMAN PILLAI PARAMESWARAN NAIR, PULLARAVILAKATH VEEDU, PANDARAVILA, KOTTUKAL, THIRUVANANTHAPURAM-695501. 14. KALYANI PILLAI KAMALAMMA PILLAI, PULLARAVILAKATH VEEDU, PANDARAVILA, KOTTUKAL, THIRUVANANTHAPURAM-695501. 15. KALYANI PILLAI OMANA AMMA, PULLARAVILAKATH VEEDU, PANDARAVILA, KOTTUKAL, THIRUVANANTHAPURAM-695501. 16. KALIYAMMA PILLAI KALYANI PILLAI, PULLARAVILAKATH VEEDU, PANDARAVILA, KOTTUKAL, THIRUVANANTHAPURAM-695501. **17. JANAKI PILLAI PONNAMMA PILLAI, PULLARAVILAKATH VEEDU,PANDARAVILA, KOTTUKAL, THIRUVANANTHAPURAM-695501. 18. M.SEELAMMA, CHERUVILA VEEDU, PULINKUDI, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM-695501. tss CRP. NO.178/2011 19. SUGANDA, CHERUVILA VEEDU, PULINKUDI, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM-695501. 20. DEEPA, CHERUVILA VEEDU, PULINKUDI, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM-695501. 21. MANAL THEERAM AYURVEDIC HOSPITAL, AND RESEARCH CENTRE PRIVATE LIMITED. *ADDL. R21 IS IMPLEADED AS PER ORDER DT. 3.8.2011 IN CRP. 178/2011. **RESPONDENTS 1 TO 7 AND 9 TO 17 , ARE DELETED FROM THE PARTY ARRAY, AT THE RISK OF THE PETITIONER, AS PER ORDER DTD. 31.3.2011 IN IA. 869/2011, IN CRP. 178/2011. R8 BY ADVS. SRI.G.S.REGHUNATH R18 – R20 BY ADV.SRI.SREEKANTH S.NAIR ADDL. 21 BY ADVS. SRI.G.P.SHINOD, SRI.RAM MOHAN.G. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P. JOSEPH, J. -------------------------------------- C.R.P. No.178 of 2011 -------------------------------------- Dated this the 4th day of August, 2011. ORDER The order dated February 26, 2011 in E.P.No.80 of 1979 in O.S.No.67 of 1959 of the court of Additional Munsiff-II, Neyyattinkara is under challenge by the petitioner/decree holder. 2. The decree was one for redemption of a mortgage. It passed through different phases and ultimately came to this Court in the form of civil revisions and writ petitions which were disposed of by a common order dated December 10, 2010 as per which petitioner was found entitled to redeem the mortgage and get delivery of possession of the property. The Supreme Court refused to entertain a challenge to that common order. Later, it is not disputed, petitioner got delivery of property. Still, dispute regarding payment of value of improvements provided in the decree remained. The Advocate Commissioner assessed value of improvements and submitted a report in the executing court. Pursuant to that, on 22.07.2010 petitioner deposited the entire amount as assessed by the Advocate Commissioner, subject ofcourse to certain objections he raised in the executing court regarding its disbursement. Mainly two objections were raised - regarding assessment made by the Advocate Commissioner on the value of improvements and, secondly; as per the terms of the decree, petitioner/decree holder is entitled to get 12% interest on the amount deposited (by way of mortgage money and value of improvements). Executing court as per the impugned order observed that it was accepting the CRP No.178/2011 2 value of improvements and mortgage money deposited by petitioner that it ordered delivery of possession of property and once delivery of property is effected, petitioner cannot raise any such objection. It was found that judgment debtors are entitled to get value of improvements. Since the Amin reported that delivery of property is effected execution petition was closed. The said order is under challenge. 3. Learned Senior Advocate appearing for petitioner/decree holder submitted that though petitioner had raised certain objections in the executing court regarding assessment of value of improvements, entitlement of the judgment debtors to the said amount and claim of petitioner regarding interest on the amount deposited, parties have now reached an understanding for apportionment of the amount in the manner the Advocate Commissioner has done it. Learned counsel for respondents 18 to 20 submitted that no such understanding is reached with respondents 18 to 20. It is also submitted by learned counsel for respondents 18 to 20 that the Advocate Commissioner had no business to allot value of improvements to the judgment debtors in the way it is done by him when the decree directed that value of improvements is payable to the original first defendant. It is contended that legal representatives of original 1st defendant alone are entitled to get value of improvements. The attempt of petitioner is to circumvent the direction in the decree providing payment of value of improvements to the original 1st defendant. In the circumstances there is no reason to interfere with the impugned order. 4. It is true that the decree directed payment of value of improvements CRP No.178/2011 3 to the original 1st defendant. But it is not disputed that thereafter, several events took place including his assigning his rights to several persons who were also brought on record. It is based on the situation which existed at the time of passing the decree that the court directed payment of value of improvements to the 1st defendant. I am inclined to think that taking into account the subsequent assignments, assessment of value of improvements and apportioning of the same to the persons entitled, does not go against the terms of decree. I am also inclined to think that the executing court has to take into account the subsequent assignments while apportioning value of improvements. 5. It is not disputed that by the assignment made by the 1st respondent, the 8th respondent got a portion of the property. Respondents 18 to 20 are persons claiming as legal representatives under the original 1st defendant. 21st respondent was impleaded being an assignee of a part of the property from the 8th respondent. Thus, all these respondents claim right under the original 1st defendant or his assignee and therefore, in my view are entitled to a share in the value of improvements proportionate to the shares they had in the property. 6. The Advocate Commissioner has submitted a report wherein he stated that the 8th respondent is entitled to get `16,20,962/- (excluding for the 50 cents) and the value of improvements payable for the (said) 50 cents is assessed as `17,73,665/-. The said assessment is regarding the western half of the total extent of property. What remained is the eastern of half of the total extent of property which was in the possession of respondents 18 to 20. The CRP No.178/2011 4 Advocate Commissioner has assessed value of improvements payable to respondents 18 to 20 as `1,48,050/-. The claim of 21st respondent comes under 8th respondent (who, I stated is entitled to get `16,20,962/-). The amount payable to the 21st respondent (in respect of the 50 cents) is `17,73,665/-. 7. I must also bear in mind that to the report of Advocate Commissioner, respondents 18 to 20 have not preferred any objection. Though the 8th respondent has preferred an objection, he is now amenable to the apportionment made by the Advocate Commissioner. 8. In the view of the above, I do not find reason why the apportionment made by the Advocate Commissioner shall not be accepted. As I stated, delivery of property has already been effected and what remained is only the apportionment of value of improvements and mortgage money. Learned Senior Advocate for petitioner has submitted that objections raised by petitioner to the report of Advocate Commissioner are not pursued. In that view of the matter the apportionment made by the Advocate Commissioner can be accepted. 9. The executing court closed the execution petition for two reasons – in view of the objection raised by petitioner which according to the executing court was not tenable since the property has already been delivered and since the Amin has reported that property has been delivered over to the petitioner. 10. In the view of the above, order passed by the executing court has to be modified apportioning value of improvements assessed by the Advocate Commissioner and the mortgage money of `295/- deposited by petitioner. So CRP No.178/2011 5 far as the mortgage money is concerned, having heard learned counsel on both sides I am inclined to direct that half of it shall go to the 8th respondent and the remaining half shall go to respondents 18 to 20 equally. Petitioner or other respondents have no objection to that apportionment and allotment . 11. So far as the 21st respondent is concerned, learned counsel for petitioner and 21st respondent submit that as per the understanding between the 21st respondent and petitioner, value of improvements payable to the 21st respondent can be withdrawn by petitioner. Resultantly this civil revision is allowed. The order dated February 26, 2011 closing E.P.No.80 of 1979 (in O.S.No.67 of 1957) of the court of learned Additional Munsiff-II, Neyyattinkara is set aside. The execution petition is disposed of and the amount in deposit is apportioned in the following manner: (1) Value of improvements assessed by the Advocate Commissioner and deposited by petitioner/decree holder - (a) the 8th respondent is entitled to get a sum of `16,20,962/- (Rupees sixteen lakhs twenty thousand nine hundred and sixtytwo only) which he can withdraw. (b) `17,73,665/- (Rupees seventeen lakhs seventythree thousand six hundred and sixtyfive only) otherwise payable to the 21st respondent can be withdrawn by the petitioner in view of the settlement they have reached as submitted before me by learned counsel for the 21st respondent and petitioner. On the application for cheque that may be preferred by petitioner, learned Munsiff shall get an endorsement from the 21st respondent CRP No.178/2011 6 that he has no objection. (c) Respondents 18 to 20 are found entitled to get `1,48,050/- (Rupees one lakh fortyeight thousand and fifty only) jointly which they can withdraw. (2) Mortgage money of ` 295/- - One half of the said amount shall go to the 8th respondent and the remainder shall go to respondents 18 to 20 equally. Those respondents are permitted to withdraw their respective shares in the mortgage money. I.A.No.870 of 2011 will stand dismissed. THOMAS P.JOSEPH, Judge. cks