Judgment :- 1. This is a revision filed by the plaintiff in 0. S. No. 42 of 1944 on the file of the Subordinate Judge's Court of Mangalore against the order dated 22nd November 1958 passed by the learned Subordidate Judge of Kasaragod in R. I, A. No. 984 of 1958. The following facts are not in dispute. The suit was for redemption and there were several defendants who were parties to the action. In these proceedings, this court is concerned only with the claims made by the legal representative of the original 8th defendant, namely, the present respondent No. 173. There was a preliminary decree passed by the trial court on 15-4-1946 under which the following directions were given: (a) the plaintiff was to deposit the mortgage amount of Rs. 7,100, and (b) he was also to deposit a sum of Rs. 7,649-2-0 as value of improvements due to the various defendants, and it is also seen that the amount of value of improvements payable to the 8th defendant, in particular, from and out of this amount was a sum of Rs. 4,089-2-0; and six months' time was given to the plaintiff for making the deposits mentioned in clauses (a) and (b). In accordance with the directions contained in the preliminary decree, the plaintiff appears to have deposited both the mortgage amount and the value of improvements as per the preliminary decree. 2. Two sets of defendants filed A. S. Nos. 88 and 138 of 1947 to the High Court of Madras against the preliminary decree passed on 15 41946. Pending the disposal of the appeals, a stay of passing the final decree also appears to have been obtained. The High Court, by a common judgment dated 3111955, made certain alterations in the amounts payable by the plaintiff: (a) The mortgage amount of Rs. 7,100 was refixed in the sum of Rs. 7,200. (b) Value of improvements of Rs. 7649-2-0 was refixed in the sum of Rs. 9852-1-4 out of which there was also a proportionate increase in the amount payable to the 8th defendant and that was refixed in the sum of Rs. 6625-7-0. 7,100 was refixed in the sum of Rs. 7,200. (b) Value of improvements of Rs. 7649-2-0 was refixed in the sum of Rs. 9852-1-4 out of which there was also a proportionate increase in the amount payable to the 8th defendant and that was refixed in the sum of Rs. 6625-7-0. (c) The plaintiff held entitled to get 6 per cent interest on the mortgage amount and value of improvements which he had already deposited by virtue of the preliminary decree from the date of deposit till the date of delivery of possession of the properties by the defendants to the plaintiff, (d). The plaintiff was also held entitled to mesne profits from the date of the deposit to the date of delivery of possession. These were the general directions given by the learned judges of the High Court in the appeals filed by the various defendants. 3. Subsequent to this, the present 173rd respondent, who is the legal representative of the deceased 8th defendant, filed R. I. A. No. 751 of 1957 for a revaluation of the improvements already granted in his favour. A commissioner appears to have been appointed for the said purpose and the commissioner's report was that no further improvements had been effected by the party so as to necessitate a revaluation as asked for in that application. On this report, the court closed the proceedings in R. I. A. No. 751 of 1957, i. e., the party therein who wanted a revaluation, did not succeed. 4. In the meanwhile, delivery of the properties was taken by the plaintiff on 10 --41957 and 114 1957. After the delivery of the properties, again the 173rd respondent filed an application to review the order in R. I. A. No. 751 of 1957. The attempt to re-open the previous order and to have a re-valuation again failed as could be seen from the fact that the said application for reviewing the order was also dismissed on 5 8 1957. In the meanwhile, The Kerala Compensation for Tenants Improvements Act, 1958, (Act 29 of 1958), came into force. On the basis of this Act, especially under S.S, the legal representative of the 8th defendant again made an attempt to hare a revaluation of the improvements, subsequent to the date of the preliminary decree and till the date of delivery of possession to the plaintiff. On the basis of this Act, especially under S.S, the legal representative of the 8th defendant again made an attempt to hare a revaluation of the improvements, subsequent to the date of the preliminary decree and till the date of delivery of possession to the plaintiff. This application, quite naturally, was opposed by the plaintiff decree-holder on the main ground that possession has already been taken by the plaintiff-decree-holder from the mortgagee as early as 114 1957 and hence the provisions of Act 29 of 1958 did not apply. In particular, the plaintiff contended that S.5 also has no application to the facts of this case. 5. The learned judge, after considering the relevant provisions of the Act, has come to the conclusion that the fact that possession has been taken by the plaintiff will not in any way be a bar to the application of the provisions of the Act in favour of the present respondent, because the final decree has not been passed by that court. The learned judge was prepared to concede the position that if final decree had already been passed and the entire decree had been executed and satisfaction entered, that would be a case where the court has become functus officio and will lose all jurisdiction to make a further order because there would be nothing more to be done and the decree would have become dead for all purposes. But as mentioned earlier, the fact that a final decree has yet to be passed makes, according to the learned judge, a difference in the position and that fact would enable a party in the position of the respondent before the court, to invoke the provisions of that Act. On this basis, the learned judge has held that the application is maintainable and also gave some consequential directions for working out the order. It is against this order, that this C. R. P. has been filed in this court by the plaintiff-decree-holder. 6. On behalf of the petitioner, Mr. Madhava Prabhu, his learned counsel, has raised two contentions: (a) under the provisions of law then obtaining in the Kasaragod area at the time when this litigation started, and also at the time when the preliminary decree was passed in the suit, there was no legislation under which a usufructuary mortgagee or a mortgagee in possession was considered to be a tenant. In these circumstances the rights of parties are governed either by the contract or by the provisions of the Transfer of Property Act. On the basis of the enactments then in force, and by virtue of the pro-visions of the Transfer of Property Act, the court has gone into the matter and ascertained the value of improvements payable to the mortgagee in possession from whom redemption was sought for. It is only under the Kerala Act, 29 of 1958, under S.2 clause (d), that a mortgagee or a sub-mortgagee of land in possession is included in the category of tenants. It is the contention of Mr. Madhava Prabhu that the present Act cannot apply and was not intended to apply to those mortgagees against whom decrees had been obtained long before the coming into force of this enactment. In short, the legislation is not retrospective so as to disturb decrees obtained by the mortgagors under the provisions of the enactments in force, (b) The general scheme of the Act regarding the claim for compensation and also for revaluation and in particular the specific and clear wordings in S.5 of the said Act itself show that those provisions can be invoked only by tenants who come under the definition as contained in the Act, and who are actually and still in possession and the rights as between them have to be yet worked out. Those provisions, especially S.S, will not apply to cases like the present where the mortgagor-decrce-holder has already taken possession of the property as early as 1957. The Act itself has come into force only on 19 51958 and as possession has already been taken, no further relief could be granted in favour of the present respondent. 7. In the view that I take on the second contention raised by Mr. Madhava Prabhu, it is not necessary forme to consider the first contention of Mr. Prabhu which raises a fairly large question. 8. For the purpose of disposing of this C. R. P., without expressing any view on the first contention raised by Mr. Madhava Prabhu, I will proceed on the basis that the present Act applies to persons in the position of the present respondent. Prabhu which raises a fairly large question. 8. For the purpose of disposing of this C. R. P., without expressing any view on the first contention raised by Mr. Madhava Prabhu, I will proceed on the basis that the present Act applies to persons in the position of the present respondent. The question is whether the view of the learned judge that, notwithstanding the fact that possession has already been taken by the decree" holder, the provisions of the Act will still apply is correct. 9. On the other hand, learned counsel Mr. Venkatachalam appearing for the contesting respondent, has supported the view of the learned judge and emphasised the fact that the relief that is asked for is only to revalue the improvements as on the date of delivery of possession, and contended that in circumstances like this, a wider and a more liberal interpretation must be placed on the enactment so as to help as far as possible, the parties who are intended to be benefitted. 10. After hearing learned counsel on both sides and after a perusal of the material provisions of the Act, I am not inclined to accept the contentions of the learned counsel for the respondent that the order under revision does not require any interference by this Court. 11. The whole scheme of the Act, in my opinion, proceeds on the basis that it is intended to assist and protect the rights of tenants who are in possession of the property on the date when they file the necessary applications claim, ing relief on the basis of the various provisions of the Act. In fact, S.2 (a) defines 'eviction' as recovery of possession of land from a tenant and 'tenant' itself has been defined to include various persons and winds up by saying "is in possession thereof." 12. It is unnecessary to consider the other provisions of the Act, namely, what items are presumed to be improvements and the method of valuation or revaluation of those improvements. The only two other relevant provisions which require consideration at present, are S.4 and 5. S.4 of the Act declares a tenant to be entitled to compensation for improvements. It is unnecessary to consider the other provisions of the Act, namely, what items are presumed to be improvements and the method of valuation or revaluation of those improvements. The only two other relevant provisions which require consideration at present, are S.4 and 5. S.4 of the Act declares a tenant to be entitled to compensation for improvements. It says: "Every tenant shall, on eviction, be entitled to compensation for improvements which were made by him, his predecessor-in-interest or by any person not in occupation at the time of the eviction who derived title from either of them and for which compensation has not already been paid; and every tenant to whom compensation is so due shall, notwithstanding the determination of the tenancy of the payment or tender of the mortgage money or premium, be entitled to remain in possession until eviction in execution of a decree or order of court." It will be seen that the statute has been very clearly worded so as to give a right to continue in possession of the property till the last pie of the value of improvements due to him has been ascertainnd and paid. Thus, the possession of the property practically confers on him a shield or protection to enforce his claims for value of improvements that he is entitled to, under the provisions of the Act. Therefore the emphasis is on the tenant's right to remain in possession until eviction in execution of the decree. Clause [2] of S.4 again emphasises the idea of possession in these terms: "A tenant so continuing in possession shall, during such continuance, hold as a tenant subject to the terms of his lease or mortgage, if any." 13. Then the other provision is S.5 of the Act and that Section says that decrees for eviction should be conditional on payment of compensation. Then the other provision is S.5 of the Act and that Section says that decrees for eviction should be conditional on payment of compensation. Clause [1] of S.5 runs as follows: "In a suit for eviction instituted against a tenant in which the plaintiff succeeds and the defendant establishes a claim for compensation due under S.4 for improvements, the court shall ascertain as provided in S.7 to 16, the amount of the compensation and shall pass a decree declaring the amount so found due and ordering that on payment by the plaintiff into the court of the amount so found due and also the mortgage money or the premium, as the case may be, the defendant shall put the plaintiff into possession of the land with the improvements thereon." Here again, emphasis is upon the right of the tenant to be in possession till the value of improvements is paid to him. The section is very clear, that it is only on complying with the conditions imposed on the landlord regarding the value of improvements that the tenant has got a duty to the landlord to deliver possession of the land along with the improvements. Clause [2] of S.5 also gives an indication that it is intended only to deal with cases of tenants being in possession. It will be remembered that clause [2] of S.4 has stated that a tenant continuing in possession, shall during such continuance hold as a tenant subject to the terms of his lease or mortgage if any; that means, such a person who continues in possession till the value of improvements is paid, is in law a tenant and is bound to pay to landlord rent. That is again emphasised in Clause.2 of S.5 where at the time of the payment of the value of improvements, the court is given power to set-off any amounts that may bo due from the tenant as rent to the landlord. That is again emphasised in Clause.2 of S.5 where at the time of the payment of the value of improvements, the court is given power to set-off any amounts that may bo due from the tenant as rent to the landlord. Clause (3) to S.5 is to the following effect: "The amount of compensation for improvements made subsequent to the date up to which compensation for improvements has been adjudged in the decree and the revaluation of an improvement, for which compensation has been so adjudged, when and in so far as such re-valuation may be necessary with reference to the condition of such improvement at the time of eviction as well as any sum of money accruing due to the plaintiff subsequent to the said date for rent, or otherwise in respect of the tenancy, shall be determined by order of the court executing the decree and the decree shall be varied in accordance with such order." It is significant to note that this clause uses the expression "at the time of eviction" and also refers to the amounts which have accured due to the plaintiff" subsequent to the date mentioned there for rent. This again gives an indication that the rights under the Act are only conferred on tenants who are still in possession. If not, there is no meaning in the legislature using the expression about the plaintiff being entitled to any rent. Once property has been delivered by the tenant to the landlord, there is no question of any payment of rent by the tenant who is out of possession of the land. All these clearly indicate, in my opinion, that the right to invoke the provisions of this Act is conferred only on tenants who continue to be in possession at the time when they seek relief or further relief under the various provisions of Kerala Act 29 of 1958. Applying these tests, the application filed in the lower court by the legal representative of the 8th defendant should be held to be incompetent and not maintainable, under the provisions of the Act in view of the fact that admittedly, the applicant therein has parted with possession of the property and the decree-holder has taken delivery of the properties as early as 10-4-1957 and 114 1957. 14. 14. Even otherwise there is this fact that the present respondent attempted to have a revaluation of the improvements by filing R. I. A. 751 of 1957 and a Commissioner was specially appointed by the court to inquire into any further improvements that might have been made and the report of the comis-sioner was that there were no further improvements effected by the tenant on the land and as such the present respondent did not get any relief in that application. The present respondent made one more infructuous attempt to reopen the order in R. I. A. 751 of 1957 by filing an application to review the same and that also had the same fate and was dismissed on 5 81957. Even on this basis, the respondent is not entitled to invoke the provisions of this Act. 15. In the result, differing from the reasoning and conclusions arrived at by the learned Subordinate Judge, I am of the opinion that the application filed by the legal representative of the 8th defendant, namely, R. I. A. No. 984 of 1958, is not maintainable under any of the provisions of Kerala Act 29 of 1958. 16. The order under revision is set aside and the Civil Revision Petition is allowed with costs payable by the first respondent. Allowed.