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1962 DIGILAW 75 (KER)

Raman v. Kochappy

1962-03-01

T.C.RAGHAVAN

body1962
Judgment :- 1. The plaintiff in a suit for redemption of a mortgage has filed this Civil Miscellaneous Appeal questioning the correctness of the order of remand passed by the lower appellate court. The question involved is a short one arising under Kerala Act XXIX of 1958. 2. The suit was decreed for redemption on payment of the value of improvements due to the mortgagee prior to the coming into force of Act XXIX of 1958, or to be more precise, even before its precursor Act X of 1956 was passed. The mortgagee filed an appeal before the lower appellate court disputing the correctness of the value of improvements granted to him and not disputing the decree for redemption. The appeal came to be heard after Act XXIX of 1958 was passed; and in the appeal the mortgagee urged that the provisions of the said Act had to be applied in valuing the improvements effected by him. Pending appeal the decree against him was executed and the property was taken possession of by the, decree-holder mortgagor in October 1955. It was contended before the lower appellate court by the decree-holder that since the mortgagee was not still in possession of the property at the time when Act XXIX of 1958 was passed, he was not a tenant entitled to the benefits of the Act and therefore the improvements effected by him should not be valued under the said Act. This objection was over-ruled and the learned Subordinate Judge remanded the case for assessing the value of some items of improvements under the new Act. It is this order of remand that is being challenged before me. 3. In Nani Kunjukrishnan v. Padmanabha Pillai Krishna Pillai (1958 KLT. 645) a Division Bench of this Court has held that in a case where an appeal was pending at the time when Act X of 1956 was passed, the provisions of that Act had to be applied in disposing of the appeal. Therefore, in the present case since the appeal disputing the value of improvements was pending at the time when Act XXIX of 1958 was enacted, the provisions of that Act should apply to the present case as well. Therefore, in the present case since the appeal disputing the value of improvements was pending at the time when Act XXIX of 1958 was enacted, the provisions of that Act should apply to the present case as well. But the contention advanced by the learned advocate of the appellant is that in this case the decree was executed and recovery of possession of the property was taken from the respondent as early as October 1955, that is, before even Act X of 1956 was passed. The learned advocate urges further that in view of the fact that the mortgagee was not in possession of the property mortgaged at the time of the commencement of Act XXIX of 1958, he could not be considered to be a tenant entitled to the benefits of that Act. The question is how far this contention can prevail. 4. In M.S. Kadambailithaya v. Beepathumma (1959 KLT. 1089) Vaidialingam,J. observed that the right to invoke the provisions of Act XXIX of 1958 was conferred only on tenants who continued to be in possession, when they sought relief or further relief under the various provisions of the Act. In a Full Bench decision of this Court in Varkey Ouseph v. Iyyo Varghis (C.R.P. No. 342 of 1958), arising out of proceedings under 0.9 R.13 of the Code of Civil Procedure, the learned judges observed that Act XXIX of 1958 having come into force during the trial stage the question had to be decided according to the provisions of that Act. They observed further that since the defendant was in possession on the date of the suit, the court had to determine the rights of the parties and the court could not evade that responsibility by taking shelter under the interpretation of the word "tenant". The decision of Vaidialingam, J. was given on 7th October 1959 and the Full Bench decision was given on 17th October 1960. Before the Full Bench the decision of Vaidialingam, J. does not appear to have been cited. Thereafter, on the ground that the observations of Vaidialingam, J. in Kadambalithaya's case were apparently against the decision of the Full Bench in C.R.P. No. 342 of 1958 (Varkey Ouseph v. Iyyo Varghis), S.A. No. 420 of 1958 (N. Narasimha Shenoy v. Souri Iyyo) was referred to a Full Bench. Thereafter, on the ground that the observations of Vaidialingam, J. in Kadambalithaya's case were apparently against the decision of the Full Bench in C.R.P. No. 342 of 1958 (Varkey Ouseph v. Iyyo Varghis), S.A. No. 420 of 1958 (N. Narasimha Shenoy v. Souri Iyyo) was referred to a Full Bench. That Full Bench did not express any opinion regarding the observations of Vaidialingam, J., but distinguished that case from the Second Appeal before them and disposed of the Second Appeal on the ground that in the Second Appeal the tenant voluntarily surrendered possession of the property, although he claimed an additional amount as compensation in appeal. According to their Lordships the voluntary surrender by the tenant disentitled him to claim the benefits of the Tenant's Improvements Act, as he was no more a tenant in possession. In view of these pronouncements, the question for my consideration is whether the order impugned in this appeal is correct or not. 5. In Kadambalithaya's case (1959 KLT.1089) there was a preliminary decree, against which appeals were filed to the Madras High Court. Some variations were made in the preliminary decree by the High Court and the appeals were disposed of on 3rd November 1955. Thereafter in 1957, the legal representative of the 8th defendant, to whom value of improvements was awarded, filed an application for revaluation of the improvements. A commissioner was appointed, who reported that there were no further improvements effected by the party so as to necessitate a revaluation and therefore the application was closed. In the meantime proceedings in execution of the decree followed and the properties were taken possession of by the decree-holder by 10th and 11th April 1957. Subsequent to that there Was an application for review of the order passed in the previous application, which was also dismissed. Then came Act XXIX of 1958 and subsequent thereto another application was filed for revaluation of the improvements, which was allowed by the lower court and that order came up for consideration before Vaidialingam, J. From the facts stated above it is clear that in that case there was no appeal pending at the time when Act XXIX of 1958 was enacted and also when the application was filed for revaluation of the improvements. So that, the decree regarding the value of improvements became final at the time when Act XXIX of 1958 came into force. So that, the decree regarding the value of improvements became final at the time when Act XXIX of 1958 came into force. Moreover, in pursuance of the execution of that decree the tenant: also lost possession of the property prior to the commencement of the Act. Thus, at the (time when the Act came into force, there was no appeal questioning the correctness of the value of improvements awarded, nor was the tenant in possession of the property. To cap, as pointed out by Vaidialingam, J. in Para.14, of the .judgment, there were previous applications for the same relief which were dismissed, which again precluded the tenant from reopening the question. Therefore, though there are some observations, which might indicate a wider import, the decision of Vaidialingam,J. can be distinguished as I have hereinbefore pointed out. 6. In C.R.P. No. 342 of 1958 (Varkey Ouseph v. Iyyo Varghis) there was an ex-parte decree, which was set aside at the instance of the defendant regarding the value of improvements due to him. In pursuance of the ex-parte decree possession of the property was recovered from the defendant and the question was raised whether the defendant thereafter could he construed as a tenant so as to claim benefits under Act XXIX of 1958. Their Lordships held that since the decree relating to the value of improvements was set aside and the question was at large, the court was bound to consider the question of valuation of improvements under the provisions of Act XXIX of 1958 and grant such benefits to the defendant. 7. In N. Narasimha Shenoi v. Souri lyyo (S.A. No. 420 of 1958) their Lordships refrained from expressing any opinion regarding the observations of Vaidialingam, J. in Kadambalithaya's case and disposed of the Second Appeal on the ground that in that case the tenant voluntarily surrendered possession of the property, though he claimed an additional amount as value of improvements in the appeal. The voluntary surrender of possession being before Act X of 1956, their Lordships held that thereafter the defendant was not entitled to claim the benefits of the Act, which came into force subsequent to such voluntary surrender. 8. In the case before me the appeal regarding the value of improvements was pending when the tenant was evicted through process of court from the property. 8. In the case before me the appeal regarding the value of improvements was pending when the tenant was evicted through process of court from the property. At this stage it will be instructive to note the wording of S.5 of Act XXIX of 1958. This section contemplates the passing of a conditional decree declaring the value of improvements due to the defendant and ordering that on payment of such value into court and also the mortgage money or the premium, the defendant shall put the plaintiff into possession of the land with the improvements thereon. So that, if an appeal regarding the value of improvements was pending at the time when Act XXIX of 1958 came into force and if under the provisions of the new Act the value of improvements is Varied, naturally that will have the effect of changing the conditional decree for possession as well. There is no point in contending that the decree for redemption is not being challenged in the appeal. Even the challenge regarding the value of improvements has an effect on the conditional decree to be passed under S.S. Therefore, if in pursuance of the decree recovery of possession has been effected through process of court pending decision of the question regarding the value of improvements in appeal, such recovery of possession cannot deprive the defendant of his rights under the Act. 9. Thus the remand order passed by the lower appellate court appears to be correct. But I would observe that the primary court will not, as far as possible, disturb, the recovery of possession already effected. The Civil Miscellaneous Appeal is dismissed; but in the circumstances, I pass no order regarding costs. Dismissed.