KESAVAPILLAI Vs. PARAMESWARAN NAIR

JUDGEMENT

(1.) It appears to me that in view of the ruling in 1958 KLT 645 this appeal by a mortgagee-defendant in a suit for redemption has to be allowed. The only question in controversy now relates to the quantum of the value of improvements that has to be awarded to the appellant on his being redeemed. The Trial Court awarded Rs. 4954-10-1 towards value of improvements. The plaintiff appealed to the District Court and the appellant before me filed a memo of objections and both the appeal and the cross objections related to the value of improvements. During the pendency of that appeal, Act X of 1956 was passed. It was urged by the appellant here before the District Court that he is entitled to have the value of improvements ascertained in accordance with the provisions of Act X of 1956. This contention was repelled by the court below on the ground that Act X of 1956 has no retrospective operation. Counsel for the appellant challenges this position and has placed before me the ruling in 1958 KLT 645 referred to above. This ruling completely supports the contention of the appellant that the value of improvements should be ascertained in accordance with the provisions of a later enactment that came into force during the pendency of an appeal. Act X of 1956 has been superceded by Act XXIX of 1958 and the latter is the enactment which will govern the rights of the parties and the improvements will have to be ascertained in accordance with the provisions of that Act. But it is strenuously urged by counsel for the respondent that the question as to whether the provisions of either Act X of 1956 or Act XXIX of 1958 are retrospective or not has not been considered in the decision reported in 1958 KLT 645. He relied on a ruling of the House of Lords reported in 1960 (3) A.E.R. 97 and invited my attention to two rulings of the Cochin High Court in IX Cochin 104 and VI Cochin 494. In the House of Lords case there are general observations that a court can give effect to the provisions of a statute which came into effect during the pendency of an appeal only, and if only, the statute was meant to be retrospective in operation. The real question, therefore, to be decided is whether there is anything in Act XXIX of 1958, the relevant provisions of which in relation to this matter are identically worded as those in Act X of 1956, which necessarily import a retrospective operation for the statute. It appears to me that S.5 of Act XXIX of 1958 makes it obligatory on the part of a court to award compensation on the basis of the provisions in the Act and that this necessarily means that the Act is retrospective in operation. I am unable to follow the decisions in IX Cochin 104 and VI Cochin 494 relied on by counsel for the respondent. There is no discussion of the question in either of these cases.

(2.) In the light of the above, I allow the second appeal, set aside the decrees of the courts below and remit the case to the Trial Court for a determination of the value of improvements payable to the appellant on the basis of the provisions of Act XXIX of 1958.

(3.) A further point has been urged by counsel for the respondent that in any view of the matter, the claim for improvements made by the appellant should be limited to the quantum claimed by him in this appeal. I do not think this is the correct position. If on a revaluation it is found that the appellant is entitled to more than the additional amount claimed by the appellant in this Court he is entitled to that amount as well.