Judgment :- 1. Defendants 1 and 3 to 7 are the appellants, in this second appeal. The suit out of which this appeal arises was one for redemption of a mortgage;. A preliminary decree was passed on 13.10.1970. According to the preliminary decree, the plaintiff was to deposit a sum of Rs.96.25 as mortgage money. Alleging that by virtue of the provisions of Tamil Nadu Act IV of 1938 the mortgage money got scaled down to zero, the plaintiff filed I.A.No.1142 of 1980 for passing of final decree. In that application, the plaintiff stated as follows: 4. The preliminary decree directs the plaintiffs to deposit Rs.96-25 as mortgage money. No money need be deposited now because the entire mortgage money stands scaled down to zero under Act IV of 1938. I am filing another petition to amend the preliminary decree in this behalf. 5. The question of value of improvements has been, relegated to the final decree. If the defendants take out a commission and get the value of improvements assessed and adjudged, I shall pay such amount as is adjudged payable. 2. During the pendency of the application, the plaintiff sold her interest to one Madhavan Nadar, who got impleaded as the second petitioner in the said application. 3. As there was no dispute with regard to the entitlement of the defendants to the value of the improvements made by them, a Commissioner was appointed by the trial Court to ascertain the value of the improvements. The Commissioner submitted a report in which he valued the buildings at Rs.3460-11 and the trees at Rs.2,498-59. The trail Court accepted the report and fixed the total value of improvements at Rs.5,958-70 p. The plaintiff was directed to deposit the said amount. The mortgagees/defendants were not satisfied with the amount awarded by the trial Court. When the appeal was heard by the learned Subordinate Judge, he set aside the report of the Commissioner on 6.7.1983 and appointed another Commissioner to assess the value of improvements. The Commissioner appointed by the appellate Court submitted his report, marked as Ex.C2, with a plan attached thereto, marked as Ex.C3. The second Commissioner valued the buildings at Rs.6584-59 and the trees at Rs.3537-20P. The plaintiff and the purchaser from her filed objection to the Commissioners report. The Commissioner appointed by the appellate Court submitted his report, marked as Ex.C2, with a plan attached thereto, marked as Ex.C3. The second Commissioner valued the buildings at Rs.6584-59 and the trees at Rs.3537-20P. The plaintiff and the purchaser from her filed objection to the Commissioners report. The main objection raised was that the Commissioner was related to the mortgagees and that they came to know of the same only when the Commissioner visited the suit property. The plaintiff had also raised certain objections regarding the valuation made by the Commissioner. 4. The learned Subordinate Judge rejected the contention that the second Commissioner was related to the mortgagees and that his report was vitiated on that account. The learned Subordinate Judge also rejected the other objection regarding the valuation of the trees and held that the value fixed by him with reference to the buildings could be taken to be the correct value. Consequently, the learned Subordinate Judge adopted the. value of the buildings fixed by the first Commissioner and the value of the trees fixed by the second Commissioner for the purpose of arriving at the total value of the improvements made by the mortgagees. In the result, the learned Subordinate Judge directed the plaintiff to deposit a sum of Rs.6997-31 as value of the improvements. 5. The mortgagees are aggrieved by the said judgment and decree of the learned Subordinate Judge and have preferred the present second appeal. Learned counsel for the appellants contended that the learned Subordinate Judge was wrong in adopting the value of the buildings as fixed by the first Commissioner when he had already set aside the report of first Commissioner. It is pointed out by learned counsel that in the order setting aside the Commissioners report, there was no reservation to the effect that it was being set aside only partially with reference to the value of the trees. Learned counsel relies upon the decision in KUTHIRAVATTATH KOGASSERI MOKSHATH THOTTAMMA ALIAS AMMA NEITHIYAR v. C. SUBRAMANIYAN AND ANOTHER, A.I.R. 1922 Mad. 219: (1922) I.L.R. 45 Mad. 79), wherein it has been held that once a report of a Commissioner is superseded, it cannot thereafter be used as a basis for valuation. There can be no dispute that the said proposition applied to the present case. 6. 219: (1922) I.L.R. 45 Mad. 79), wherein it has been held that once a report of a Commissioner is superseded, it cannot thereafter be used as a basis for valuation. There can be no dispute that the said proposition applied to the present case. 6. However, learned counsel for the respondents contends that the value of the improvements should have been fixed with reference to the date on which the mortgage money was paid or deemed to have been paid by virtue of the statutory provisions. Learned counsel contends that in the present case, the mortgage money was deemed to have been paid under the provisions of the Tamil Nadu Agriculturists Relief Act IV of 1938 and that when the plaintiff filed the application for passing a final decree, no amount was due to the mortgagees. It is, therefore, submitted that the value of the improvements should have been fixed as in 1980 when the application for final decree was filed. Learned counsel also submits that the mortgagees will not be entitled to the value of any improvement made subsequent to the date on which the relationship of mortgager and mortgagee ceased to exist. According to learned counsel for the respondents, the relationship of mortgagor and mortgagee ceased to exist at any rate in 1980 at the time when the application for final decree was filed. 7. Reliance is placed upon the decision of a Full Bench of Kerala High Court in VARKEY PAILY v. KURIAN AUGUSTHY, A.I.R. 1967 Ker. 247: 1967 K.L.T. 189. It is, however, admitted that this aspect of the matter was not drawn to the attention of either of the Courts below. It is seen from the application filed by the plaintiff for passing of final decree, that she has admitted her liability to pay the value of improvements and invited the Court to assess the same. In the application, no reference has been made to any date with respect ‘to which the value has to be assessed. Learned counsel, however, submits that this being a question of law, she should be allowed to raise the same in the second appeal. I have allowed her to do so. 8. I am of the opinion that the contention raised by learned counsel for the respondents, though at first appears to be sound is really without any substance. Learned counsel, however, submits that this being a question of law, she should be allowed to raise the same in the second appeal. I have allowed her to do so. 8. I am of the opinion that the contention raised by learned counsel for the respondents, though at first appears to be sound is really without any substance. In this case, it is seen that the preliminary decree is only for redemption, directing the plaintiff to deposit the mortgage money. When the application for final decree is filed, the liability to pay the value of improvements is admitted by the mortgagor. The relevant provisions relating to fixation of value of improvements and the entitlement of the mortgagee thereto are found in Travancore Cochin Compensation for Tenants Improvements Act, 1955 (Act X of 1965). 9. Sec.2(d) of Act X of 1956 defines a tenant thus: tenant with its grammatical variations and cognate expressions, includes a person who, as lessee, sub-lessee, mortgagee or sub-mortgagee or in good faith believing himself to be lessee, sub-lessee, mortgagee or sub-mortgagee of land, is in possession thereof or who, with the bona fide intention of attorning and paying a reasonable rent to the person entitled to cultivate or let waste-land but without permission of such person, brings such land under cultivation and is in occupation thereof as cultivator. It is seen therefrom that a mortgagee is also considered to be a tenant for the purposes of this Act. Sec. 4 of the Act provides that 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 had not already been paid and that every tenant to whom compensation is so due shall, notwithstanding the determination of the tenancy or the payment or tender of the mortgage money or premium, if any, be entitled to remain in possession until eviction in execution of a decree of order of court. Sec.5 of the Act provides for ascertainment of the value of improvements in accordance with Secs.7 to 16 of the Act and for passing of a decree declaring the amount so found due and ordering that on payment by the plaintiff into Court of the amount so found due in addition to 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. A provision is also made under Sec.5(3) of the Act for variation of the decree in cases where improvements were made subsequent to the date upto which compensation for improvements had been adjudged in the decree and for revaluation of such improvements. Sec.10 of the Act provides that the amount of compensation to be awarded for an improvement shall be ascertained in the way prescribed by any of the Secs.7, 8 and 9 which is most favourable to the tenant. 10. A reading of the above provisions will show that a mortgagee, who is defined as a tenant for the purposes of the Act, will be entitled to claim the value of improvements until an order of eviction is made against him. The order of eviction can be made only when the mortgage money and the value of the improvements are deposited by the plaintiff. In the present case, the preliminary decree directed the plaintiff to deposit the mortgage money. The plaintiff herself admitted that she was liable to pay the value of improvements and she filed an application for passing of final decree. The contention that the relationship of mortgagor and mortgagee should exist when the mortgage money was deemed to have been paid under the provisions of Act IV of 1938 cannot be accepted for the simple reason that when the mortgage money was deemed to have been paid, it is only the liability of the mortgagor that ceased to exist and not the relationship. In fact the provisions of Sec.9-A of the Tamil Nadu Act IV of 1938 speak only of the right of the mortgagor to redeem the mortgage on the scaling down of the debt. In fact the provisions of Sec.9-A of the Tamil Nadu Act IV of 1938 speak only of the right of the mortgagor to redeem the mortgage on the scaling down of the debt. A reading of Or.34, R.9 Code of Civil Procedure would also show that if the Court finds after the passing of a preliminary decree that no amount is due to the mortgagee it shall pass a decree directing the defendant to retransfer the property to the plaintiff. It is only thereafter the relationship of mortgagor and mortgagee would cease. The provisions of Travancore Act X of 1955 are unambiguous in the matter of the mortgagees right to the value of improvements made by him. 11. The decision in VARKEY PAILY v. KURIAN AUGUSTHY, A.I.R. 1967 Ker. 247: 1967 K.L.T. 189, on which strong reliance is placed by learned counsel for the respondents, does not really support her. It will be useful to refer to the facts of that case before considering the principle laid down by the Full Bench. In that case, the appellant had obtained a preliminary decree for partition, redemption and separate possession of his half share of the mortgaged property from the hands of his co-owner, the predecessor of the respondents who, having redeemed the mortgage money at Rs.31/- and odd and required him to deposit this amount before seeking possession. It also provided that he would be entitled to mesne profits in respect of his half share at a specified rate from the date of the deposit until delivery of possession or until three years after the passing of the final decree, whichever event happened earlier. The appellant made the deposit on 23.10.1954. Sometime after the deposit, the predecessor of the respondents effected an improvement in the property in the shape of a bund. It is not clear whether the said improvement was made before or after the passing of the final decree on 29.8.1956. On 23.9.1957, the appellant sought to execute the decree obtained by him and take delivery. At that time, the respondents filed an application under Sec.5(3) of Act 10 of 1956 for a variation of the decree by awarding compensation for the improvement made by them. That application was allowed on 20.8.1959 by which date, (Kerala) Act 29/58 had replaced Travancore Act 10 of 1956. At that time, the respondents filed an application under Sec.5(3) of Act 10 of 1956 for a variation of the decree by awarding compensation for the improvement made by them. That application was allowed on 20.8.1959 by which date, (Kerala) Act 29/58 had replaced Travancore Act 10 of 1956. The improvement was valued at Rs.103.62 and the final decree was varied by requiring the appellant to make a further deposit of this sum before taking possession. However, the decree for mesne profits made on 23.10.1954 was left undisturbed. On 4.9.1959 the appellant made a further deposit and he obtained delivery on 18.9. 1959. Then, in execution of his decree for mesne profits, he attached the amount in deposit whereupon the respondents filed an application for raising the attachment on the ground that by virtue of the provisions of Kerala Act 29 of 1958, they were under no liability to pay the mesne profits until the further deposit was made on 4.9.1959 and their possession till that date was not wrongful possession. The trial Court dismissed the application on the ground that an improvement effected after a decree for possession was passed, could not have the effect of making possession prior to the improvement rightful possession. The appellate Court thought otherwise and allowed the application made by the respondents. An appeal against that order of the appellate Court came before the Full Bench which reversed the decision of the appellate Court and held that the respondents before them did not have any right to claim the value of improvements. 12. It will be seen from the facts, of that case, that it was not a dispute between the mortgagor and mortgagee as such. It was a case where one co-owner had already redeemed the mortgage and claimed a right of subrogation. In the preliminary decreed passed in the. said case, there was a provision for payment of mortgage money and for mesne profits in favour of the plaintiff from the date of making deposit of the mortgage money. That itself proved that the mortgagee had no right to the value of improvements even if he had made any before that date. In the preliminary decreed passed in the. said case, there was a provision for payment of mortgage money and for mesne profits in favour of the plaintiff from the date of making deposit of the mortgage money. That itself proved that the mortgagee had no right to the value of improvements even if he had made any before that date. When once there was a decree for mesne profits in favour of the plaintiff from the date of the deposit of the mortgage money by the plaintiff and when such a deposit was made in fact the possession of the mortgagee after the date of such deposit was treated as unlawful by that decree. Hence the Full Bench held that after the date of deposit of the mortgage money by the plaintiff in that case in accordance with the preliminary decree, the respondent before the Full Bench was not entitled to claim the value of improvements as a mortgagee. In that case it was also found that the improvement was actually made long after the passing of the preliminary decree, though it was not clear whether it was before or after the passing of the final decree. In such a situation, the Full Bench had to consider the provision of Sec.5(3) of Act 10 of 1956. 13. The following observations made by the Full Bench make the position clear: "Sec. 4(1) begins by saying that every tenant shall, on eviction, be entitled to compensation for improvements which were made by him. This does not mean that the right to compensation springs from eviction. The right to compensation is always there; and if not already paid (which means that there can be an earlier payment and that the right accrues when the improvement is made) it is payable on eviction. But, it seems to us clear, that the improvements must have been made while the person concerned was a tenant within the meaning of the Act (whether by definition or by reason of Sub-sec.(2) of Sec.4), not after he had ceased to be a tenant and that the words, "on eviction" are not to be read as meaning that compensation is to be paid for improvements effected right up to the time of eviction, even for improvements effected after the person had ceased to be a tenant. Those would not be improvements made by a tenant within the meaning of the Act but by a quondam tenant and the words, "which have been made by him" surely mean that the improvements must have been made by him as a tenant. Thus, if a tenant has effected improvements during the currency of his tenancy, he is entitled to compensation for the improvements. If such compensation has not already been paid before the determination of the tenancy, or the payment or tender of the mortgage money, the tenant is under the latter part of Sub-sec.(1) of Sec.4 entitled to remain in possession until eviction in execution of a decree or order of the Court. (It is important to note that the subsection proceeds on the footing that what we have called a mortgage tenancy is determined by the payment or tender of mortgage money-and this is in keeping with what is laid down in PRITHI NATH v. SURAJ AHIR, A.I.R. 1963 S.C. 1041: (1963)3 S.C.R. 302 . It is also to be noted that the sub-section does not make the compensation part of the mortgage money-see also Sub-sec.(1) of Sec.5 which speaks of the payment into Court by the plaintiff of the amount found due by way of compensation for improvements and also the mortgage money). Sub-sec.(2) of the section provides that 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. IN OTHER WORDS, THE COMBINED EFFECT OF THE TWO SUB-SECTIONS IS THAT A TENANT TO WHOM COMPENSATION IS DUE UNDER SUB-SEC.(1) AT THE TIME OF THE DETERMINATION OF THE TENANCY IS ENTITLED, NOTWITHSTANDING SUCH DETERMINATION TO CONTINUE IN POSSESSION AS A TENANT. HE BECOMES A STATUTORY TENANT NOTWITHSTANDING THAT THE CONTRACTUAL TENANCY WHICH TERMS WE SHALL USE TO DENOTE A TENANCY AS DEFINED IN SEC.2(d) AND AS INCLUDING A MORTGAGE TENANCY) WAS DETERMINED. IF, THEREAFTER, HE EFFECTS IMPROVEMENTS, HE WOULD BE ENTITLED TO COMPENSATION FOR SUCH IMPROVEMENTS FOR THEY WOULD BE IMPROVEMENTS EFFECTED BY HIM WHILE HE WAS A (STATUTORY) TENANT. BUT, A PERSON TO WHOM NO COMPENSATION IS DUE UNDER SUB-SEC.(1) AT THE TIME OF THE DETERMINATION OF HIS (CONTRACTUAL) TENANCY IS NOT ENTITLED TO REMAIN IN POSSESSION UNDER THAT SUB-SECTION AND DOES NOT IF HE CONTINUES IN POSSESSION, HELD AS A TENANT UNDER SUB-SEC.(2) (Emphasis Supplied). BUT, A PERSON TO WHOM NO COMPENSATION IS DUE UNDER SUB-SEC.(1) AT THE TIME OF THE DETERMINATION OF HIS (CONTRACTUAL) TENANCY IS NOT ENTITLED TO REMAIN IN POSSESSION UNDER THAT SUB-SECTION AND DOES NOT IF HE CONTINUES IN POSSESSION, HELD AS A TENANT UNDER SUB-SEC.(2) (Emphasis Supplied). Any improvements effected by him after the determination would not be improvements made by a tenant and therefore he would not be entitled to any compensation under Sub-sec.(1). No doubt the words, has not already been paid occurring in the first part of the sub-section relate in point of time to the eviction; but, equally, so the words, to whom compensation is so due†occurring in the second part relate to the determination of the (contractual) tenancy. If, at that time, compensation is due under the first part of the sub-section, in other words, if the tenant has effected improvements but has not already been paid compensation for them, then, notwithstanding the determination of his (contractual) tenancy, he is under the second part entitled to remain in possession until eviction in execution. But not if compensation is not due at the time of the determination of the contractual tenancy. If compensation is due and he continues in possession, and he is entitled to, his continuance, is as a statutory tenant under sub-sec.(2),m and by reason, of Sub-sec.(1), he would be entitled also to compensation for improvements effected by him as such tenant till the determination of this statutory tenancy by eviction in execution; and this additional compensation would also be payable on eviction. When then does this statutory tenancy determine so as to disentitle the tenant to remain in possession and to compensation for improvements effected thereafter? According to the second part of Sub-sec.(1) of Sec.4 read with Sub-sec.(2) of the section, until eviction in execution of a decree or order of Court. The tenancy is not determined by a decree for eviction; there must be eviction in execution. And since, eviction means the recovery of possession of land from a tenant, in other words, actual delivery; an over-literal construction would lead to the absurdity that the statutory tenancy can never determine and that the tenant can never be evicted. For, how can a tenant whose tenancy has not determined be evicted? And how can his tenancy be over determined if actual delivery is necessary to effect a determination? For, how can a tenant whose tenancy has not determined be evicted? And how can his tenancy be over determined if actual delivery is necessary to effect a determination? We should think that what the second part of Sub-sec.(1) of Sec.4 really means is that the tenant to whom compensation is so due is entitled to remain in possession until eviction (in other words, delivery of the property) is ordered in execution of a decree or order of Court. The executing Court is empowered to determine the statutory tenancy by making such an order and Sub-sec.(3) of Sec.5 ensures that, not-standing a decree for eviction made under Sub-sec.(1), it will do so only after the entire compensation due to the tenant under Sub-sec.(1) of Sec.4 for improvements effected during the continuance of his tenancy (contractual and statutory) is paid into Court. For that purpose it is empowered to vary the decree already made - to go behind that decree as it were by-ordering that the defendant shall put the plaintiff into possession on the latter paying into Court compensation as re-assessed under Sub-sec.(3) of Sec.5. (This it may be noted, can conceivably lead to a reduction of the amount payable owing to a set off of rent subsequently accrued or a deterioration in the condition of the improvements). Once an order for delivery is made in execution and the statutory tenancy determined, there can be no question of the defendant being entitled to remain in possession as a tenant by effecting improvements thereafter (for which again compensation has to be determined and paid) and thus, by a repetition of the process, indefinitely postponing eviction. And should the defendant be disposed continually to effect fresh improvements after compensation has been assessed, solely with a view to make reassessments and consequent variations of the decree necessary, thus involving an indefinite postponement of the order for delivery, that would be an abuse of the process of the Court which the Court would probably meet by the appointment of a receiver or by the issue of an injunction. (See COLUMBUS v. NARAYANAN, 1954 K.L.T. 518 and THANU PILLAI v. MATHEVAN, A.I.R. 1963 Ker. 179: 1962 K.L.T. 688.") 14. (See COLUMBUS v. NARAYANAN, 1954 K.L.T. 518 and THANU PILLAI v. MATHEVAN, A.I.R. 1963 Ker. 179: 1962 K.L.T. 688.") 14. While referring to the provisions of Sec.5 of the Act, the Full Bench observes that a decree under Sub-sec.(1) is not a mere decree for possession but is a decree to be passed when "the defendant establishes a claim for compensation due under Sec.4 of improvements". In that case, the decree which was passed by the Court was a mere decree for possession and such possession could be obtained by the plaintiff on depositing the amount determined already. There was no question of any improvements at the time when the decree was passed. But in the present case, the plaintiff herself admitted that she was liable to pay the value of improvements when she filed an application for passing of final decree. The principle laid down by the Full Bench referred to above, will only be against the contention raised by learned counsel for the respondents in the present case. Hence, the same is rejected. The appellants will be entitled to the value or improvements claimed by them. 15. What remains to be done is to fix the quantum. The learned Subordinate Judge is clearly wrong in relying upon the report of the first Commissioner when he had already by his own order dated 6.7.1983 set aside the said report. Having set aside that report, it is not open to the learned Subordinate Judge to have taken one part of the same to be valid and adopting the same for fixing the value of the buildings. The objections raised by the plaintiff to the report of the Commissioner with regard to the valuation of the buildings as well as the trees are not of any substance. The evidence of the witness for the plaintiff does not improve the case of the plaintiff with regard to the value of the buildings or the trees. The only course open to the Court is to accept the report of the second Commissioner with regard to the value of the buildings and the trees. 16. In the result, the report of the second Commissioner appointed by the lower appellate Court fixing the value of the trees and building at Rs.3,537.20 P., and Rs.6,584.59 P. respectively is accepted. The only course open to the Court is to accept the report of the second Commissioner with regard to the value of the buildings and the trees. 16. In the result, the report of the second Commissioner appointed by the lower appellate Court fixing the value of the trees and building at Rs.3,537.20 P., and Rs.6,584.59 P. respectively is accepted. The total value of the improvements comes to Rs.10,121.79 P. Respondents 1 and 2 are directed to deposit the said sum of Rs.10,121.79 P. into Court towards the value of improvements. 17. In the result, the second appeal is allowed. In the circumstances of the case, there will be no order as to costs.