JANAKI THANKAMMA Vs. KAMALAKSHY SUMANGALA

JUDGEMENT

(1.) A final decree for redemption of the ottikuzhikanan under Ext. A1 dated 15.6.1960 and for recovery of possession of the property is passed by the lower court in OS No. 149/90. When the decree holder filed EP 415/93 for execution of the decree, the 1st judgment debtor filed EA No. 994/93 to appoint a commissioner to value the improvements in the property and claiming kudikidappu right in the property. The lower court dismissed the application by order dated 28.5.1994. That order is challenged in this revision petition.

(2.) The petitioner has contended that in the preliminary decree for redemption passed in the above suit on 29.7.1991 there was a direction to value the improvements in the plaint schedule property by a commissioner to be appointed in the final decree proceedings and even though she filed a petition for issue of a commission, in the final decree proceedings, she could not deposit the batta for the commission due to financial stringency and the lower court dismissed that application and subsequently passed final decree in the suit. According to her, as there is finding in the preliminary decree that she is entitled to value of improvements, the above petition for issue of a commission filed in the execution proceedings is perfectly valid, since she is entitled to continue in possession until the value of improvements is determined and paid to her under the provisions of the Compensation for Tenants Improvements Act, 1958.

(3.) But the contention of the respondents is that even though an opportunity to take out a commission to value the improvements during the final decree proceedings was provided in the preliminary decree the petitioner did not avail that opportunity since after filing the petition to issue a commission she failed to take out commission to value the improvements in the final decree proceedings as she did not deposit the commission batta and she cannot claim for the issue of a commission in the execution proceedings as there is no such direction in the final decree proceedings and the execution court cannot go behind the decree.