IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929 CRP.No. 799 of 2003(F) ---------------------- AGAINST THE ORDER DATED 09/12/2002 IN EP.115/2000 IN OS.299/1975 of III ADDL.M.C.,TRIVANDRUM .................... REVN. PETITIONER: JUDGMENT DEBTOR/DEFENDANT ------------------------------------------- K.RAVEENDRAN NAIR, RESIDING AT KUNNUMPURATHU VEEDU, VILAPPILSALA, PEYYAD P.O., THIRUVANANTHAPURAM. BY ADV. SRI.L.MOHANAN SMT.LIGEY ANTONY RESPONDENTS: ADDL.DECREE HOLDERS 2 TO 7 --------------------------------------- 1. K.R.RAMACHANDRAN NAIR, RESIDING AT 'AVITAM', VITTIYAM, PEYAD P.O. THIRUVANANTHAPURAM. 2. K.R.DAMODARAN NAIR, ARUN BUILDING, PEYAD P.O., THIRUVANANTHAPURAM. 3. K.R.RAJENDRAN NAIR, ROHINI VAITTIYAM, PEYAD P.O., THIRUVANANTHAPURAM. 4. K.R.SUDHAKUMARI, 'SREELEKSHMI', VELLOORKONAM, OORUTTAMBALAM, KUVALASSERY P.O., THIRUVANANTHAPURAM. 5. K.R.MOHANAN NAIR, MOOZHIYIL VEEDU, VITIYAM, PEYAD P.O., THIRUVANANTHAPURAM. 6. K.RAVEENDRAN NAIR, KUNNUMPURATHU VEEDU, VILAPPILSALA, PEYAD P.O., THIRUVANANTHAPURAM. ADDITIONAL RESPONDENT 7. R.PADMAKUMAR, S/O LATE R.KUNJUKRISHNA PILLAI AGED 35, MOOZHIYIL VEEDU, VITIYAM, PEYAD P.O. THIRUVANANTHAPURAM Additional respondent impleaded vide order dated 13-3-06 in I.A.No.2506/03 BY ADV. SRI.K.B.PRADEEP THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON C.M.P.NO.1943/03 IN C.R.P.NO.799/03 Dismissed 22-02-2008 Sd/-, PIUS.C.KURIAKOSE, JUDGE. /True Copy/ PA to Judge PIUS C. KURIAKOSE, J. ---------------------------------- C.R.P. NO. 799 of 2003 ---------------------------------- Dated this the 22nd day of February, 2008 O R D E R The judgment debtor in a decree for redemption is aggrieved by the order of the Execution Court turning down his claim for value of improvements which had been effected by him after the decree. 2. Preliminary decree for redemption was passed on 15.7.1997 adjudging the mortgage amount of Rs.500/- and value of improvement at Rs.210.20 and allowing the plaintiff/respondent to realise the mense profits at the rate of 100/- p.a. from the date of deposit of mortgage amount till delivery of the property. The redemption price and value of improvements were deposited by the respondents before the Execution Court on 4.11.1977. Against the judgment and decree there was an appeal A.S. 160/1978 to the District Court. The District Court remanded the matter after confirming the mortgage amount and value of improvements for consideration inter alia of the question of fixity of tenure. Subsequent to that another preliminary decree was passed on 31.5.1982 against which also A.S. 24/1983 was filed. A.S. 24/1983 was dismissed. Thereafter CRP.No.799/03 2 the final decree was passed in terms of the preliminary decree . The respondent filed E.P.115/2000 wherein the revision petitioner claimed the value of the improvements made subsequent to the preliminary decree in terms of Section 5 (3) of the Compensation of Tenancy Improvements Act and for that he filed a Commission Application as well. The Execution Court allowed the Commission Application and the Commissioner assessed additional value of improvements and filed a report to that effect. The commissioner was examined as DW1 and the Revision Petitioner was examined as DW2. The Commissioner's report was marked as Ext.C1. No counter evidence was adduced by the respondent decree holder. Under the impugned order, the Execution Court rejected the claim for additional value of improvements on the reason that once the mortgage money was deposited the relationship seized and ordered delivery of the property. The delivery has since taken place and the civil revision petitioner is directed against the rejection of the petitioner's claim for value of improvements. 3. I have heard the submissions of Sri. L.Mohanan the learned counsel for the petitioner and those of Sri.K.B. Pradeep the learned counsel for the respondent decree holder. Sri. Mohanan drew my attention to Section 5(c) of the compensation for Tenancy CRP.No.799/03 3 Improvements Act. He placed strong reliance on the judgment of this court in Salma Beevi v. Nalini (2005 (3) KLT 878), Kalyani Amma v. Varghese (1989 (2) KLT 408) and submitted that the facts situation obtaining in this case is comparable to those which obtained in the two decisions particularly the judgment of Sri.Udayabhanu J. 4. Sri.K.P.Pradeep, the learned counsel for the respondent however did not agree. He referred to Section 2(b) of the Compensation for Tenancy Improvements Act and also the judgments of the Full Bench of this court in Varkey Paily v. Kurian Augusthy (1967 KLT 189(F.B.), and the judgment of this court in Krishnan Nair v. Kunjan Pillai ( 1968 KLT 457). My attention was drawn by him to the reports submitted by the Advocate Commissioner Sri.Arun Kumar.S. before the court below. Having considered the rival submissions addressed at the Bar in the light of the judicial precedents on which my attention was drawn by the learned counsel, I am of the view that the matter requires reconsideration at the hands of the learned Munsiff. It appears to me that the principles laid down by this court in Salma Beevi v. Nalini ( 2005(3)KLT 878) ought to have governed the decision to be taken in the judgment. Therefore I set aside the impugned order and direct the execution court to pass fresh orders in the light of the principles CRP.No.799/03 4 laid down by this court in Salma Beevi's case. Fresh orders as directed above will be passed at the earliest and at any rate within two months of receiving a copy of this order. Both sides are permitted to cite other apposite judicial precedents before the court below. PIUS C. KURIAKOSE JUDGE dpk/sv CRP.No.799/03 5