RADHAMMA VIJAYAMMA Vs. CHANDRASEKHARAN NAIR

JUDGEMENT

(1.) Both these revision petitions are filed against the common order in E. A. 1114/95 and E. A. 1117/95 in E.P 95/82 in O. S.339/69 on the file of the II Additional Munsiff's Court, Neyyattinkara. E. A. 1117/95 is filed by defendants 13, 15 and 16, while E. A 1114/95 is filed by the 10th defendant. The 10th defendant, Radhamma Vijayamma, is a legal representative of the third defendant. The first petitioner in E. A. 1117/95 is also a legal representative of the 3rd defendant, while the other two petitioners in the above E. A. are the legal representatives of the 2nd defendant. O. S.339/69 was filed for redemption of mortgage. Eventhough notice were served on the defendants, they remained ex parte. So , a preliminary decree was passed for redemption. In the suit, the plaintiffs agreed that the defendants have made improvements to the value of Rs. 1000/-. Hence a preliminary decree for redemption was passed directing the plaintiff to deposit the mortgage money and value of improvements. Subsequently, the plaintiffs filed an application for final decree. In the application for final decree also notices were sent to the defendants. But, there also the defendants remained ex parte. During the pendency of the final decree, mortgage money and value of improvements were deposited. Thereafter a final decree for recovery of possession was passed. During the pendency of the suit, in the preliminary decree stage as well as final decree stage, some of the defendants died and their legal representatives were impleaded. Thereafter the plaintiffs filed E.P. 95/82. Many contentions were taken by the judgement debtors in order to stall the recovery of possession. Even independent rights were agitated during execution. The present applications, E. A. 1114/95 and E. A. 1117/95, were filed for ascertaining the value of improvements. In E. A. 1114/95, the prayer was to assess the value of improvements from 1088 M.E. till the passing of the final decree and to assess the increase in the value after the decree. Similarly, in E. A, 1117/95 the prayer was to assess the value of improvements in the property in possession of the petitioners taking into account the change in the value after the decree. Both these applications were dismissed by the executing Court. So far as E. A. 1114/95 is concerned, the executing Court held that the petitioner therein had earlier filed E. A. 300/94 for the same relief and it was dismissed. Hence the present petition was barred by the principles of res judicata. Regarding E. A. 1117/95, the court held that the petitioners are not entitled to any remedy, since the value of improvements was not fixed under S.5 of the Kerala Compensation for Tenant's Improvements Act, hereinafter referred to as " the Act. Admittedly, in the case the mortgage money and value of improvements were deposited during the course of the final decree proceedings. Once the mortgage money was deposited, the relationship of mortgagor and mortgagee ceased and thereafter the possession of the mortgagee is unlawful. Hence, the mortgagee is not entitled to the value for improvements effected subsequent to the deposit of mortgage money (See Govindan v. Bhaskaran, 1992 (1) KLT 577 , of the Supreme Court of India ).

(2.) It is also worthmentioning, no claim was raised by the judgment debtors - defendants either during the pendency of the preliminary decree or during the pendency of the final decree. The question is whether the petitioners are entitled to a reassessment of the value of the improvements on the basis of S.5(3) of the Act. For this purpose, I may refer to S.5 of the Act: -