IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 CRP.No. 3319 of 2001(I) ----------------------- OS.102/1973 of PRL.MUNSIFF COURT,NEDUMANGAD .................... JUDGMENT DEBTOR/DEFENDANT/REVN. PETITIONER(S): --------------------- SALOMI VIJAYAMMA, POTTITHARA VEEDU,MOTTAVILA, VAZHAYILA, PURAVOORKONAM MURI, KARAKULAM. BY ADV. SRI.GOPAKUMAR R.THALIYAL SRI.SUNIL SHANKER SRI.N.P.PRAJEESH DECREE HOLDERS/PLAINTIFFS/RESPONDENT(S): --------------- 1.JOSFEENA, PARAMUKAL PUTHEN VEEDU, PURAVOORKONAM MURI, KARAKULAM VILLAGE. 2.CHRISTUDAS, PARAMUKAL PUTHEN VEEDU, PURAVOORKONAM MURI, KARAKULAM VILLAGE. 3.GEORGE, PARAMUKAL PUTHEN VEEDU, PURAVOORKONAM MURI, KARAKULAM VILLAGE. 4.SHINY,D/O.PHILOMINA, PARAMUKAL PUTHEN VEEDU, PURAVOORKONAM MURI, KARAKULAM VILLAGE. 5.A.GEORGE,MEKKEVEEDU, PURAVOORKONAM MURI, KARAKULAM VILLAGE. (DELETED) RESPONDENT 5 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 31.10.2007 IN I.A.NO.2277/07. ADV. SRI.R.S.KALKURA FOR R1TO3 SRI.R.S.KALKURA FOR R4 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN C.M.P.NO.6969/01 IN C.R.P.NO.3319/01 DISMISSED. 7.4.2010 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.3319 OF 2001 () ----------------------------------- Dated this the 7th day of April, 2010 O R D E R The revision has been filed by the judgment debtor in E.P.No.45 of 1976 in O.S.No.102 of 1973 of the Munsiff Court, Nedumangad. The decree executed in the above suit is one passed in a suit for redemption. The mortgage property is having an extent of 43.5 cents. There were two defendants in the suit. The revision petitioner/1st defendant was the mortgagee from whom redemption was sought for. The 2nd defendant was impleaded as a person who had constructed a hut in the property under the mortgagee. However, that defendant remained ex parte through out the proceedings. The trial court passed a decree allowing redemption on 27.2.1976 directing deposit of the mortgage money, ascertained as Rs.500/-, within three months. The 1st defendant preferred appeal as A.S.No.149 of 1976 before the Sub Court, Thiruvananthapuram challenging the decree passed by the trial court. The appeal was dismissed C.R.P.NO.3319/01 2 confirming the decree of the trial court on 12.6.1978. After deposit of the mortgage money on 8.4.1976, within the time fixed by the court, the decree holder filed the execution petition for getting delivery of the mortgage property. The judgment debtor moved for appointment of a commission to ascertain the value of improvements. Commissioner deputed by the court after conducting local inspection and assessing the value of improvements, filed a report stating that towards the value of improvements, a sum of Rs.524/- is due to the mortgagee. The amount so assessed by the Commissioner was deposited by the decree holder on 13.7.1976. After the report was filed by the Commissioner assessing the value of improvements and also the deposit of such sum by the decree holder, the judgment debtor raised the plea of kudikidappu seeking determination of that claim by the Land Tribunal. The execution court referred the claim of kudikidappu to the Land Tribunal. The Land Tribunal, after enquiry, upheld the plea of kudikidappu canvassed by the judgment debtor and with that finding, returned the records to the court. It is submitted that the finding on kudikidappu was C.R.P.NO.3319/01 3 entered by the Land Tribunal treating the landlord ex parte in its proceedings. Whatever that be, the execution court, on receipt of the finding of the land Tribunal, has mandated under the provisions of the Land Reforms Act accepted that finding, and ordered delivery of the mortgage property subject to the kudikidappu claim of the mortgagee. The order of delivery so passed by the execution court dated 26.5.1982 was challenged by the decree holder preferring a revision as C.R.P.No.1406 of 1982. That revision was allowed by this Court setting aside the finding of kudikidappu entered by the Land Tribunal and remitting the claim of kudikidappu for fresh consideration by the Land Tribunal. On such remission to the execution court, the claim of kudikidappu was referred again to the Land Tribunal. The reference was numbered as R.C.No.19 of 1989, and after enquiry, the Land Tribunal entered a negative finding that the judgment debtor is not entitled to kudikidappu. On return of the records with finding from the Land Tribunal, the judgment debtor moved an application E.A.No.232 of 1996 requesting for a further reference to the Land Tribunal to adjudicate her claim of C.R.P.NO.3319/01 4 kudikidappu. That request was declined by the execution court by order dated 14.7.1998. Against the dismissal of his application E.A.No.232 of 1996, the judgment debtor preferred a revision C.R.P.No.1820 of 1998 before this Court. That revision was dismissed by order dated 20.9.1999, in which, it was observed that it was open to the judgment debtor to challenge the finding negativing his claim of kudikidappu by the Land Tribunal in the appropriate forum by taking appropriate proceedings as provided by law. Pursuant to disposal of that revision, the judgment debtor again moved an application for ascertainment of the improvements made in the mortgage property by deputing an Advocate Commissioner. That application being allowed, an Advocate Commissioner deputed by the court after conducting local inspection and assessing the improvements, filed a report stating that towards value of improvements made, the mortgagee is entitled to a sum of Rs.42,594/-. Both sides, the decree holder and also the judgment debtor filed objections to that report. The court below, after considering the merit of the report with reference to the C.R.P.NO.3319/01 5 objections filed by the parties, accepted that report and also the finding entered by the Land Tribunal that the judgment debtor is not entitled to kudikidappu right as claimed. On accepting the report and also the finding of the Land Tribunal, as indicated above, the court below directed the decree holder to deposit the sum assessed by the Commissioner towards the value of improvements before the court on or before 15.11.2001. Order so passed by the execution court is impeached in the revision by the judgment debtor. 2. I heard the counsel on both sides. On the second reference made before the Land Tribunal without awaiting for the report of the Revenue Officer, the Land Tribunal has closed the proceedings entering a negative finding that the judgment debtor mortgagee is not entitled to kudikidappu is the grievance espoused by the learned counsel for the revision petitioner to assail the finding of the Land Tribunal and its acceptance by the execution court. Claim of improvements canvassed by the judgment debtor was not properly and correctly assessed by the C.R.P.NO.3319/01 6 Commissioner and very many tenable objections raised by the judgment debtor to the report of the Commissioner have not been properly appreciated by the execution court is the submission of the counsel. It is submitted that the quantum fixed by the Commissioner is grossly inadequate and it has no reference to the improvements effected in the mortgage holding by the judgment debtor. Lastly, the learned counsel for the revision petitioner contended that the assessment made by the Commissioner in respect of the value of improvements over the mortgage property was made atleast a decade ago, and so much so, the interest of justice demand a reassessment to take note of the improvements subsequently made after the last visit of the Commissioner. So much so, in any view of the matter, setting aside the impugned order passed by the execution court a further opportunity be provided to the revision petitioner/judgment debtor to substantiate his claim of kudikidappu before the Land Tribunal and also the assessment of the value of improvements afresh by deputing an Advocate Commissioner, is canvassed for by the counsel. C.R.P.NO.3319/01 7 3. Per contra, the learned counsel appearing for the decree holder inviting my attention to Victoria v. K.V.Naik and others ((1997) 6 SCC 23) contended that the claim of kudikidappu raised by the judgment debtor/mortgagee which was not canvassed on the trial side but only at the stage of execution was barred by constructive res judicata, and so much so, the present plea canvassed for a further reference to the Tribunal for reconsideration of the claim of kudikidappu, that too, after a negative finding had already been entered by the Land Tribunal, is not at all warranted in the facts and circumstances of the case. So far as the plea canvassed for reassessment of the value of improvements, the learned counsel highlighting that the decree allowing redemption of the mortgaged property had been passed on 27.2.1976 submitted that in view of the dilatory tactics and raising untenable contentions of the judgment debtor the decree holder has been prevented from enjoying the fruits of the decree despite depositing of the mortgage money and also the value of C.R.P.NO.3319/01 8 improvements as determined by the Advocate Commissioner deputed by the court. The revision filed by the judgment debtor is unworthy of any merit and there is no infirmity leave alone jurisdictional infirmity in the order passed by the execution court warranting interference in exercise of revisional jurisdiction by this Court is the submission of the learned counsel for the decree holder. 4. I have considered the rival submissions made by the counsel on both sides with reference to the impugned order passed by the execution court and also the records of the case. So far as the claim of kudikidappu canvassed by the judgment debtor, the competent authority, the Land Tribunal, after reference, has answered it in the negative. The decision relied by the learned counsel for the decree holder Victoria v. K.V.Naik and others ((1997) 6 SCC 23)) rendered by the apex court expressing the view that a plea of kudikidappu, if not raised on the trial side cannot be canvassed in execution as barred by constructive res judicata, it is seen, was considered by C.R.P.NO.3319/01 9 this Court in Vidhyadharan v. Sivadas (2001 (2) KLT 605). A challenge was raised in the above case Vidhyadharan v. Sivadas (2001 (2) KLT 605) that the decision rendered by the apex court was repugnant to and conflicting to Explanation IV to Section 2(25) of the Kerala Land Reforms Act, which would indicate that so far as a mortagee is concerned, his claim of kudikidappu would arise only at the time of redemption of mortgage and not before. This Court, taking note of the decision of the apex court in Victoria's case (supra) has held that the correctness or otherwise of the above judgment can be considered only by the Supreme court. Whatever be the interpretation to be placed on the statutory provision under the Land Reforms Act till then, the decision of the apex court has to be followed and considered. No decision rendered by the apex court subsequent to Victoria's case (supra) has been brought to my notice to hold that a different interpretation on a claim of kudikidappu by a mortgagee with reference to Explanation IV to Section 2(25) of the Kerala Land Reforms Act has to be given. When that be so, whatever be the challenges raised by the C.R.P.NO.3319/01 10 judgment debtor impeaching the irregularity or denial of opportunity to establish such claim before the Land Tribunal in the light of the decision of the apex court as referred to above, it has to be concluded that the finding entered by the Land Tribunal negativing her claim does not warrant further scrutiny or critical examination by this Court on merits. Then, with respect to the claim of value of improvements assessed by the Advocate Commissioner, which too is impeached by the judgment debtor, it is noticed that the Advocate Commissioner, who prepared the report exhibited as Ext.C1 had been examined as DW1 in the proceedings. Perusing the evidence of DW1, it is seen that other than some vague suggestions that the Commissioner had failed to consider some of the improvements, no tenable objection was substantiated to discard the evidentiary value of his report. In this context, it is also to be taken note the mortgage holding is only having an extent of 43.5 cents, in which a building occupied by the 1st defendant is also in existence. The Commissioner deputed during the trial side has assessed the value of improvements made in the property and quantified it at C.R.P.NO.3319/01 11 Rs.524/-. In the execution proceedings, the Advocate Commissioner deputed has found that towards the value of improvements made by the judgment debtor, a sum of Rs.42,594/- has to be paid. By no stretch of imagination, it could be held that the assessment so made by the Commissioner is inadequate or unreasonable. Any how, as noticed by the execution court, the judgment debtor has not established that any further sum than what was assessed by the Commissioner is due to her towards the value of improvements made in the property. So much so, the challenges raised by the judgment debtor impeaching the correctness of the order passed by the execution court, in the proved facts of the case, do not have any merit. A decree passed in a suit for redemption on 27.2.1976 still remain to be executed in view of the challenges raised by the judgment debtor from time to time in the execution proceedings. There will be be a direction to the court below to pass appropriate orders for delivery of the property and completion of C.R.P.NO.3319/01 12 the execution proceedings, as expeditiously as possible, and if necessary, by providing police aid, if requested for. At any rate, the court below shall complete the execution proceedings within a period of three months from the date of receipt/production of a copy of this order. Revision is disposed accordingly. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.3319 OF 2001 () ----------------------------------- O R D E R 7th day of April, 2010 C.R.P.NO.3319/01 14