High Court Kerala High Court

Madai Thiruvarkat Kavu Devaswom vs Chamaparambil Radha on 17 January, 2007

Kerala High Court
Madai Thiruvarkat Kavu Devaswom vs Chamaparambil Radha on 17 January, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP No. 2682 of 2002()


1. MADAI THIRUVARKAT KAVU DEVASWOM,
                      ...  Petitioner

                        Vs



1. CHAMAPARAMBIL RADHA,
                       ...       Respondent

                For Petitioner  :SMT.VIDHYA. A.C

                For Respondent  :SRI.KALEESWARAM RAJ

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :17/01/2007

 O R D E R
                  M.Sasidharan Nambiar,J.



                C.R.P No.2682/02 & 1607/03



       Dated this the 17th day of January, 2007



                           O R D E R

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

CRP 2682/02 & 1607/03 2

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

CRP 2682/02 & 1607/03 3

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

CRP 2682/02 & 1607/03 4

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

CRP 2682/02 & 1607/03 5

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

CRP 2682/02 & 1607/03 6

to be set aside. Reliance was placed on the

decision of this Court in Raman Ittiyathi v. Pappy

Bhaskaran AIR 1990 Kerala 112) and it was argued

that defendant is not entitled to claim value of

improvements effected after the date of decree.

4. Learned counsel appearing for respondent

argued that in view of the order of this court in

R.P.566/02, which is binding on the decree holder,

petitioner is not entitled to contend that

respondent is not entitled to the value of

improvements effected after the date of decree. It

was pointed out that, that question was

specifically considered by this court in R.P.566/02

and held that respondent is entitled to the value

of improvements effected even after the date of

decree and being a party to the proceedings,

petitioner is not entitled to ignore that order or

to avoid that order and as long as that order

stands, it is binding on the petitioner and

therefore order of the executing court cannot be

CRP 2682/02 & 1607/03 7

interfered on that ground. It was also argued that

Commissioner has correctly valued the improvements

and there is no reason to interfere with the

estimate of the value of improvements at this

belated stage.

5. Though ordinarily a judgment debtor against

whom a decree for recovery of possession is granted

is not entitled to claim value of improvements

effected after the date of decree, in view of the

specific order of this court dated 19.12.02 in

R.P.566/02 whereunder the very question was

considered and held against petitioner, petitioner

is not entitled to contend that respondent is not

entitled to value of improvements effected after

the date of decree. Eventhough there was a finding

in the order in C.R.P.1047/01 which was dismissed

in limine without hearing respondent, that decree

holder is not liable to pay the value of

improvements effected after the date of decree,

judgment debtor filed R.P.566/02 to review that

order contending that as per the appellate court

CRP 2682/02 & 1607/03 8

decree as well as by the conduct of the parties

judgment debtor is entitled to value of

improvements effected even after the date of

decree. This court considered the contention and

held as follows:-

“9. It is also clear from the

conduct of the parties that

they have accepted the decree

passed by the lower appellate

court as it is and that fact

is evident from the order

passed by this court in

C.R.P.1348/90 dated 10.10.90

preferred by the respondent

against the order passed by

the executing court directing

the respondent to deposit the

value of improvements as found

by the Commissioner in Ext.C1

report. No contention is seen

raised by the respondent in

CRP 2682/02 & 1607/03 9

the C.R.P that the review

petitioner is entitled to

value of improvements only

upto the date of decree passed

in the suit and she is not

entitled to value of

improvements effected after

the date of the decree. The

contention raised in the C.R.P

was against the correctness

and acceptability of the value

of improvements estimated by

the Commissioner in Ext.C1

report without considering the

objections filed by the

respondent to Ext.C1 before

the executing court.

xx xx xx xx xx xx

12. The observation made by

the lower court in the

impugned order to the effect

CRP 2682/02 & 1607/03 10

that the argument that the

respondent is not entitled

for value of improvements

effected after the date of

decree cannot be accepted

since the decree shows that

the respondent is entitled

for value of improvements

assessed on the date of

delivery is to be understood

subject to and in consonance

with the findings of the

appellate court regarding

entitlement of the review

petitioner herein to the

value of improvements claimed

in the suit.”

In view of the said order which is binding on the

petitioner, petitioner is not entitled to contend

that respondent is not entitled to the value of

improvements effected after the date of decree.

CRP 2682/02 & 1607/03 11

6. Then the question is whether value of

improvements assessed by Commissioner and accepted

by the executing court warrants any modification.

Learned counsel appearing for petitioner rightly

pointed out that while fixing value of improvements

for the coconut trees, Commissioner has not

deducted 1/4th towards droppings and 1/4th towards

cultivation expenses as provided under the

Compensation for Tenants Improvements Act.

Therefore to that extent, estimate made by

Commissioner warrants modification. If the value

of improvements of coconut trees is refixed after

deducting 1/4th for droppings and 1/4th towards

cultivation expenses, the value of improvements

would comes only Rs.9500/-. Therefore instead of

Rs.27,000/- as awarded by executing court, decree

holder is liable to deposit only Rs.9500/- in that

head.

7. Though it was vehemently argued that value

of improvements for the building is excessive, on

going through the report, I find that no

CRP 2682/02 & 1607/03 12

modification is warranted. Decree holder is

therefore liable to deposit Rs.1,76,577/- less

Rs.16,500/-the excess compensation fixed for

coconut trees. The decree holder is directed to

deposit the said amount, less the amount already

deposited within two months from today. On such

deposit, executing court is directed to deliver the

property. C.R.P. 1607/02 allowed to that extent.

Till petitioner deposits the value of improvements,

judgment debtor is entitled to be in possession of

the property or deal with the property and in such

circumstances, there is no illegality in the order

passed by executing court dismissing E.A.211/02

warranting interference. C.R.P. No.2682/02 is

therefore dismissed.

M.Sasidharan Nambiar

Judge

tpl/-

M.SASIDHARAN NAMBIAR, J.

———————

CRL.R.P.NO. /97

———————

ORDER

MARCH,2006