PADMANABHAN NAIR Vs. RAGHAVAN NAIR

JUDGEMENT

(1.) This is an appeal by the mortgagee judgment debtor under a decree for redemption. Compensation for improvements on the land had been adjudged in the decree dated May 29, 1952, on the basis of a commissioners report dated August 9, 1948 (25 12 1123 M. E.) at Rs. 1100 odd. In execution, after the commencement of the Travancore Cochin Act X of 1956, the appellant claimed revaluation of the compensation due to him; and a commission was issued, whose report dated November 15, 1957, has neither been accepted nor rejected by the court so far. Both parties have taken exception to parts of its contents. After the Kerala Act, XXIX of 1958, came into force, the appellant put in another application for the issue of a fresh commission to value the compensation due to him under that Act. That has been rejected by the executing court and the same upheld by the Subordinate Judge in appeal. Hence this second appeal.

(2.) Under S.5(3) of Act XXIX of 1958 "the amount of compensation for improvements made subsequent to the date up to which compensation for improvements has been adjudged in the decree and the revaluation of an improvement, for which compensation has been so adjudged, when and in so far as such revaluation may be necessary with reference to the condition of such improvement at the time of eviction" have to be determined by the executing court, which is empowered to vary the decree accordingly. The expression 'the date up to which compensation for improvements has been adjudged' has been interpreted by a Full Bench of this Court in Mathai v. Narayana Pillai 1960 KLT 1192 F. B., where, without a discussion, it was held:

(3.) Counsel for the respondent plaintiff states that improvements effected up to November 15, 1957, have been the subject of assessment by a commissioner and they need not now be revalued. A commissioner's report cannot conclude the parties. As the said report of the commissioner has not been accepted by the court so far and a valuation of improvements effected upto date has now to be made, I would direct the court below to determine, after issuing a fresh commission at the expense of the appellant, the value of improvements effected on the property subsequent to August 9, 1948. and to amend the decree according to that determination as provided for in S.5(3) of Act XXIX of 1958. There will be no order as to costs in this Second Appeal.