NARAYANI AMMA Vs. PARUKUTTY AMMA

JUDGEMENT

(1.) The second appeal is directed, against the judgment and decree dated 19-12-1970 in O. S. No. 68 of 1969 on the file of the Munsiff's Court, Parur, as modified by the judgment and decree dated 15-1-1976 in A. S. No. 49 of 1974 on the file of the Sub Court, Parur The suit was one for redemption. Repelling the contentions of the appellant defendant, the suit was decreed by the Trial Court, and, subject to certain modifications with respect to mesne profits payable to the decree holder, the preliminary decree passed by the Trial Court has been confirmed by the first appellate court, which has also directed that the decree passed by it may be treated as the final decree for redemption. The cross objection by the respondents plaintiffs is directed against the reservation of kudikidappu right in favour of the appellant defendant allowed by the courts below.

(2.) Though several other contentions also are seen to have been raised in the Memorandum of Second Appeal, the sole point highlighted by Shri. P.N. Sankaranarayana Pillai, the counsel for the appellant, is that gross miscarriage of justice has been caused by the courts below in not allowing the appellant to take out a Commission to value the improvements effected by the appellant for payment of compensation to her. It is seen observed in the judgment of the first appellate court that after the issues were framed by the Trial Court, though the suit had undergone several adjournments, till the date on which the suit came up in the special list for actual trial, the appellant did not take any steps for the issue of commission, and therefore, there was no ground made out for remanding the matter to enable the appellant to take out a commission for valuing the improvements, if any, effected by her. Counsel for the respondents relied on this observation and also referred to the clause in Ext. D1 mortgage deed dated 16-4-1123 M. E. prohibiting the mortgagee from effecting any improvements in the land comprised in the mortgage and categorically disclaiming the mortgagor's liability to pay compensation, for improvements, if any, effected in violation of the terms of the mortgage.

(3.) I cannot help saying that the appellant was guilty of laches in not having been vigilant about her rights and for not having taken steps for the issue of commission at the appropriate stage. The tendency to apply for the issue of commission on the date on which the suit comes up for trial in the special list, after it having undergone several adjournments, has to be deprecated in strong words. After the passing of the preliminary decree by the Trial Court a period of nearly one decade has elapsed. The counsel for the appellant while admitting that there was apparent delay in applying for the issue of commission, hastened to add that it was not due to indifference or wilful negligence on the part of the appellant, but was due to her honest belief that the suit might not be taken up for trial within such a short time of about one year from the date of framing the issues; and, she may be given an opportunity of taking out a commission, even on payment of costs. It is with great reluctance that I accede to the request of the counsel for the appellant for giving the appellant an opportunity of taking out a commission for assessing the value of improvements alleged to have been effected by her; and it is also on condition that the appellant should pay by way of costs to the respondents, through their counsel in this court, a sum of Rs. 250/-.