RAMAN Vs. KOCHAPPY

JUDGEMENT

(1.) The plaintiff in a suit for redemption of a mortgage has filed this Civil Miscellaneous Appeal questioning the correctness of the order of remand passed by the lower appellate court. The question involved is a short one arising under Kerala Act XXIX of 1958.

(2.) The suit was decreed for redemption on payment of the value of improvements due to the mortgagee prior to the coming into force of Act XXIX of 1958, or to be more precise, even before its precursor Act X of 1956 was passed. The mortgagee filed an appeal before the lower appellate court disputing the correctness of the value of improvements granted to him and not disputing the decree for redemption. The appeal came to be heard after Act XXIX of 1958 was passed; and in the appeal the mortgagee urged that the provisions of the said Act had to be applied in valuing the improvements effected by him. Pending appeal the decree against him was executed and the property was taken possession of by the , decree holder mortgagor in October 1955. It was contended before the lower appellate court by the decree holder that since the mortgagee was not still in possession of the property at the time when Act XXIX of 1958 was passed, he was not a tenant entitled to the benefits of the Act and therefore the improvements effected by him should not be valued under the said Act. This objection was overruled and the learned Subordinate Judge remanded the case for assessing the value of some items of improvements under the new Act. It is this order of remand that is being challenged before me.

(3.) In Nani Kunjukrishnan v. Padmanabha Pillai Krishna Pillai ( 1958 KLT 645 ) a Division Bench of this Court has held that in a case where an appeal was pending at the time when Act X of 1956 was passed, the provisions of that Act had to be applied in disposing of the appeal. Therefore, in the present case since the appeal disputing the value of improvements was pending at the time when Act XXIX of 1958 was enacted, the provisions of that Act should apply to the present case as well. But the contention advanced by the learned advocate of the appellant is that in this case the decree was executed and recovery of possession of the property was taken from the respondent as early as October 1955, that is, before even Act X of 1956 was passed. The learned advocate urges further that in view of the fact that the mortgagee was not in possession of the property mortgaged at the time of the commencement of Act XXIX of 1958, he could not be considered to be a tenant entitled to the benefits of that Act. The question is how far this contention can prevail.