MADAI THIRUVARKAT KAVU DEVASWOM Vs. CHAMAPARAMBIL RADHA

JUDGEMENT

(1.) Petitioner Devaswom is the decree holder. Respondent is the judgment debtor. The decree in O.S.125/80 is for recovery of possession. Decree holder has to pay the value of improvements, to be determined at the time of execution. Petitioner filed E.P.40/89 for execution of the decree. A Commission was appointed. Commissioner originally fixed value of improvements at Rs. 73,754.14. Executing court directed petitioner to deposit the same. It was challenged before this Court by decree holder in C.R.P.1348/90. As per order dated 10.10.90, this Court set aside the order of the executing court and directed executing court to determine the question afresh after permitting the parties to adduce further evidence. Before C.R.P.1348/90 was disposed, executing court had closed E.P.40/89 for the failure of decree holder to deposit the amount as directed earlier. After the dismissal of C.R.P.1348/90 decree holder filed E.P.37/97. Along with the execution petition, decree holder deposited Rs. 81,906/- being the value of improvements directed to be deposited in E.P.40/89 with interest till then. On 20.2.98 executing court fixed the value of improvements at Rs. 57,844.92. Decree holder and judgment debtor challenged that order before this Court in C.R.P.1352/98 and C.R.P.1235/98. This Court as per common order dated 26.11.98, set aside the order of executing court and directed the court to depute a Commission to assess the value of improvements as per the Compensation for Tenants Improvements Act,1958. Advocate Santhosh was appointed as the Commissioner. He submitted Ext.C3 report. It was remitted and Commissioner submitted Ext.C4 report whereunder value was fixed at Rs. 2,14,040/-. Report was again remitted back to Commissioner. Commissioner submitted another report fixing the value of improvements at Rs. 1,76,577/-. Petitioner filed E.A.19/01 to call for the assistance of PWD Engineer to estimate the value of the building. It was dismissed. Petitioner challenged that order in C.R.P.1047/01. It was dismissed in limine. There was an observation in the order of this Court that respondent is entitled to value of improvements effected only upto the date of the decree. Judgment debtor filed R.P.566/02 which was allowed by this Court as per the order dated 19.12.02. This Court as per order held that judgment debtor is entitled to value of improvements effected even after the decree as provided under the appellate decree. Before the executing court the Executive Officer of Devaswom was examined as PW1 and Commissioner as PW2. On the side of judgment debtor, judgment debtor was examined as RW1. Executing court thereafter accepting Ext.C4 report directed decree holder to deposit Rs. 1,76,577/- being the value of improvements as assessed in Ext.C4 report. The prayer of decree holder to reject Exts.C3 and C4 reports filed by Commissioner was disallowed as per order dated 19.3.03 and accepting Exts.C3 and C4 the decree holder was directed to deposit the amount on 26.5.03. Petitioner did not deposit that amount and consequently execution petition was dismissed. It is challenged in C.R.P.1607/03. When E.P.37/97 was pending decree holder filed E.A. 211/02 an application for temporary injunction. It was dismissed by the executing court as per order dated 12.11.02. Challenging the said order C.R.P.2682/02 was filed.

(2.) Learned Counsel appearing for petitioner and respondent were heard.

(3.) The argument of learned Counsel appearing for petitioner was that executing court did not properly appreciate Exts.C3 and Ext.C4 reports and without affording opportunity to challenge the order, accepting Exts.C3 and C4 petitioner was directed to deposit the amount and on the failure to deposit the amount, execution petition was dismissed and petitioner could not prefer a revision challenging the order accepting Exts.C3 and C4 as certified copy of the order was not furnished to petitioner. It was argued that value of improvements fixed by the executing court relying on Exts.C3 and C4 is illegal and cannot be accepted. It was also argued that the value of improvements for the coconut trees, if calculated in accordance with the guidelines provided under Compensation for Tenants Improvements Act, 1958, it would only be Rs. 9500/- and Commissioner estimated the value at Rs. 27,000/- and therefore value of improvements is excessive. It was further argued that judgment debtor is not entitled to claim any value of improvements effected after the date of decree of the trial court and as per Exts.C3 and C4 Commissioner has valued all the improvements effected by petitioner even after the date of decree and therefore petitioner is not liable to deposit value of the same. It was also argued that Commissioner has not properly valued the value of buildings and therefore the order is to be set aside. Reliance was placed on the decision of this Court in Raman Ittiyathi v. Pappy Bhaskaran and it was argued that defendant is not entitled to claim value of improvements effected after the date of decree.