SREEDHARAN NAMBOODIRI Vs. DEVAKI ANTHARJANAM

JUDGEMENT

(1.) The first respondent is the decree holder in O. S. No. 294 of 1987 on the file of the Sub Court, Irinjalakuda. The suit was filed by her against the petitioner and the second respondent for recovery of possession of the plaint schedule property. The suit was decreed by the Trial Court and it was confirmed in appeal and Second Appeal. The first respondent herein filed E. P. No. 331 of 1999 for execution of the decree. The Trial Court had decreed value of improvements. The petitioner has claimed additional value of improvements. A Commissioner was appointed in the execution proceedings to assess the value of improvements and the Commissioner has assessed the value of improvements as Rs. 12,15,000/ -. The first respondent herein filed Ext. P1, E. A. No. 1829 of 2003 to allow her to deposit Rs. 6,78,566/- before the Execution Court and take delivery of the property immediately. The petitioner and the second respondent filed Ext. P2 counter statement in E. A. No. 1829 of 2003 contending that Ext. P1 application is not maintainable in law and there is no justification for depositing a portion of the value of the improvements and get delivery of the property before disposal of the execution petition. The court below posted E.A. 1829 of 2003 for counter and enquiry to 4-12-2003. On 4-12-2003 Ext. P2 counter was filed. The petition was heard and it was posted for orders to 08.1.2.2003. On 08.12.2003 the E. A. was reopened and posted for hearing to 18.12.2003. On 18,12.2003, the case was adjourned to 07-01-2004. On 07-01-2004, the court below passed the following orders:

(2.) Heard learned counsel on both sides. A decree was passed by the Sub Court, Irinjalakuda in O. S. No. 294 of 1987 in favour of the first respondent / decree holder for recovery of possession of the decree schedule property. E. P. No. 331 of 1999 was filed for execution of the decree. Value of improvements was assessed at the trial stage and at the request of the petitioner herein, a Commission was appointed and the Commissioner assessed the value of improvements at Rs. 12,15,000/- in the execution also. E. A. No. 1829 of 2003 is filed by the decree holder for allowing him to deposit Rs. 6,78,566/- before the Execution Court and take delivery of the decree schedule property immediately. The petitioner along with the second respondent herein filed Ext. P2 counter statement challenging the maintainability of the petition along with other contention. On hearing the parties, the Execution Court originally closed the E. A. and posted for hearing along with E. P. on 27.01.2004. Against the said order, the first respondent filed Writ Petition No. 3195 of 2004 before this court and this court at the admission stage itself directed the Execution Court to consider and dispose of Ext. P1 on merit. The Review Petition filed by the petition herein was disposed of with a direction that the Execution Court shall consider and dispose the petition afresh on merit. Thereafter, the Execution Court passed Ext. P5 impugned order. The definite contention of the petitioner is that such a petition is not maintainable in law. The petitioner being a tenant entitled to get value of improvements. As per S.4 of the Kerala Compensation for Tenants Improvements Act, 1958, every tenant shall, on eviction, be entitled to compensation for improvements which were made by him. his predecessor in interest or by any person not in occupation at the time of eviction who derived title from either of them and for which compensation had no been paid, and every tenant to whom compensation is so due shall, notwithstanding the determination of the tenancy of the payment of the mortgage money or premium, if any, be entitled to remain in possession until eviction in execution of a decree or order of court. So, according to the learned counsel, the tenant is entitled to remain in possession of the property unless compensation had been finally decided and paid. Here, the Commissioner has assessed the value of improvement as Rs. 12,15,000/-. But what exactly is the amount of compensation is not finally decided by the Execution Court. The prayer of the first respondent is to grant permission to deposit Rs. 6,78,566/ - and direct to effect delivery immediately. Without depositing the entire value of improvements, the decree holder is not entitled to get delivery of the property and the tenants are not liable to surrender possession. Before delivery of the properly, the court below ought to have ascertained the amount of compensation due to the tenant and only after payment Delivery can be ordered. Before payment of compensation the decree holder is not entitled to take delivery of the property.

(3.) The effect of the provision contained in Clause of 3 of S.5 read with clause.1 of S.4 is to postpone the execution of the decree for delivery of the properties until the tenants claim for value of improvements is finally settled. It operates by implication as a statutory stay of eviction of the tenant from the holding pending adjudication of the execution court of the claim put forward by him for additional compensation as contemplated by clause.3 of S.5. As per the decision reported in Kadambalithaya v. Beepathumma ( 1959 KLT 1089 ) the statute has been very clearly worded so as to give a right to continue in possession of the property till the last pie of the value of improvements due to the tenant has been ascertained and paid. The possession of the property practically confers on him a shield or protection to enforce his claims for value of improvements under the provisions of the Act. Therefore, the emphasis is on the tenants' right to remain in possession until payment of compensation. Before payment, no eviction shall be ordered.