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