SALMA BEEVI Vs. NALINI

JUDGEMENT

(1.) The revision petitioner/respondent in E.P.No.50/97 has sought for setting aside the order of the execution Court in declining his application for appointment of a Commissioner to reassess the value of improvements for the period subsequent to the date of valuation made at the time of the preliminary decree in the suit instituted for redemption of mortgage by the plaintiff respondent. The revision petitioner has flayed the order of the execution court alleging manifest infirmities in the order on account of the evident misunderstanding of the legal position in the matter. The preliminary decree for redemption was passed on 19.2.1986 with a direction to deposit Rs.3,555/- towards mortgage money and value of improvements. The decree holders deposited the same on 14.10.86 but the course of the litigation was prolonged, or protracted on account of the appeal filed by the defendants which ended in dismissal on 12.7.91. The final decree was passed on 10.7.92. On the failure of the defendant to vacate the property, the execution proceedings were initiated. It is in the above E.P., the E.A. was filed by the defendant for reassessing the value of improvements claiming that he is entitled for the same vide S.5(3) of the Kerala Compensation for Tenants Improvements Act, 1958 (hereinafter to be mentioned as the Act).

(2.) The application was resisted by the plaintiff/respondent contending that the continuance of the possession of the defendants, i.e., judgment debtors, after the date of deposit of mortgage money and value of improvements is wrongful and unlawful which disentitled them from claiming revaluation and reassessment of improvements.

(3.) The case of the revision petitioner is that as per S.5(3) of the Act, it is mandatory to further assess the improvements for which compensation has already been adjudged and to vary the decree in accordance with such revaluation. The order of the court below that the mortgagee is entitled only for compensation of improvements effected during the contractual period of tenancy is absolutely and totally incorrect, it is contended. It is particularly mentioned that when the Commissioner visited the property, the rubber trees were only saplings and right now the same are yielding. .