RAGHAVAN Vs. VELAYUDHAN

JUDGEMENT

(1.) Plaintiffs 2, 3, 5, 3 and 10 in O. S. No. 83 of 1956 on the file of the Additional Sub Court, Alleppey, are the appellants. The suit was for redemption of a mortgage and for recovery of possession of the suit properties. The plaintiffs obtained a decree on 15-7-1958 for redemption and recovery of possession. That decree was confirmed in appeal by this Court on 25-3-1965. The decree fixed the price for redemption to be deposited by the decree holders. The mortgage amount was fixed at Rs. 3939.50 and the value of improvements at Rs. 10467/-. The decree holders deposited the price for redemption and applied as per EP No. 410 of 1966 for possession of the property to be delivered to one Sarojini Bai, in whose favour the decree holders had executed a possessory mortgage apparently for raising the requisite money for payment of the price for redemption. Objections were raised by judgment debtors 6 and 17. It is not necessary to advert to all the objections raised. One of the objections was that they are entitled to the benefits of S.4A of the Kerala Land Reforms Act, as amended by Act 35 of 1969 and hence the decree for redemption and recovery of possession has become unexecutable. There was a second contention that in the event of eviction they are entitled to compensation for improvements in the property on revaluation of the same as provided for in S.5(3) of the Kerala Act 29 of 1958. The execution court found that the mortgagees had been in possession from 1090 onwards under the mortgage Ext. P1 and they were also in possession on the date on which Kerala Act 35 of 1969 came into force. They continued to be mortgagees even after deposit of the price for redemption on 20-12-1966 for the reason that the judgment debtors are entitled to additional value of improvements on revaluation under S.5(3) of Act 29 of 1958 in respect of improvements effected subsequent to the suit as well as for the improvements already valued prior to the commencement of Act 29 of 1958; and for these reasons the decree holders are not entitled to execute the decree and obtain possession of the property. It is against this that some of the decree holders have come up in revision. This revision was referred for decision by a Division Bench on the contention raised by counsel for the petitioners about the correctness of the decision of a learned Single Judge of this Court reported in 1978 KLT 459 .

(2.) This Court in the said decision had held that in cases where additional value of improvements is to be paid, the mortgagee will continue to be a statutory mortgagee by virtue of the provisions contained in sub-s.(2) of S.4 of Act 29 of 1958. Under sub-s.(1) of S.4 every tenant, on eviction, shall be entitled to compensation for improvements, and, notwithstanding the determination of the tenancy or the payment or tender of the mortgage money, shall be entitled to remain in possession until eviction in execution of a decree or order of court. The decree or order of court should also contain a provision for payment of compensation for improvements revalued under sub-s.(3) of S.5 of the Act. Sub-s.(2) of S.4 is extracted below:

(3.) In the present case value of improvements was fixed as early as in 1953. The suit was originally instituted as OS. No. 169 of 1124 of the District Court, Alleppey, and was renumbered as OS. No. 83/1956 of the Sub Court, Alleppey. A commission issued at the stage of execution has submitted a report, marked as Ext. C4. Ext. C4 report would show that the judgment debtors are entitled to additional value of improvements fixed under sub-s.(3) of S.5 of Act 29 of 1958 at Rs. 6199.06. Even though there is objection to the additional value fixed and the amount so fixed has not become final, there is no dispute that there are additional improvements to be valued under sub-s.(3) of S.5 and the mortgagees are also entitled to a revaluation of the improvements already valued, under the provisions of sub-s.(3) of S.5 of Act 29 of 1958.