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2004 DIGILAW 143 (KER)

Sreedharan Namboodiri v. Devaki Antharjanam

2004-03-31

A.LEKSHMIKUTTY

body2004
Judgment :- The first respondent is the decree holder in O.S.No.294 of 1987 on the file of the Sub Court, Irinjalakuda. The suit was filed by her against the petitioner and the second respondent for recovery of possession of the plaint schedule property. The suit was decreed by the trial court and it was confirmed in appeal and Second Appeal. The first respondent herein filed E.P.No.331 of 1999 for execution of the decree. The trial court had decreed value of improvements. The petitioner has claimed additional value of improvements. A Commissioner was appointed in the execution proceedings to assess the value of improvements and the Commissioner has assessed the value of improvements as Rs.12,15,000/-. The first respondent herein filed Ext. P1, E.A.No.1829 of 2003 to allow her to deposit Rs.6,78,566/- before the Execution Court and take delivery of the property immediately. The petitioner and the second respondent filed Ext.P2 counter statement in E.A.No.1829 of 2003 contending that Ext.P1 application is not maintainable in law and there is no justification for depositing a portion of the value of the improvements and get delivery of the property before disposal of the execution petition. The court below posted E.A.1829 of 2003 for counter and enquiry to 4.12.2003. On 4.12.2003 Ext.P2 counter was filed. The petition was heard and it was posted for orders to 8.12.2003. On 8.12.2003 the E.A. was reopened and posted for hearing to 18.12.2003. On 18.12.2003, the case was adjourned to 7.1.2004. On 7.1.2004, the court below passed the following order: “It is decided to proceed with E.P. initially by recording evidence. Hence this E.A. is not considered now. For hearing with E.P. value of improvements has to be fixed initially, then only E.P. can be proceeded with. E.A. closed. For hearing with E.P. 27.1.2004”/ On 27.1.2004, the case was adjourned to 25.2.2004. On 27.1.2004, the first respondent herein filed W.P.(C) No.3195 of 2004 before this court to direct the Sub Court, Irinjalakuda to permit her to deposit certain portion of improvements mentioned in Ext.P6 less the valuation of the first floor portion mentioned therein, and allow to take delivery of possession of the decree schedule property in O.S.No.294 of 1987 within such time as may be fixed by this Court. The Writ Petition was disposed of by this court without issuing notice to the petitioner herein as per Ext.P-3. The Writ Petition was disposed of by this court without issuing notice to the petitioner herein as per Ext.P-3. As per Ext.P3, this court directed the Sub Court, Irinjalakuda to dispose of E.A.NO.1829 of 2003 in E.P.No.331 of 1999 as expeditiously as possible, at any rate within one month from 28.1.2004. On knowing Ext.P3 judgment, the petitioner filed R.P.No.124 of 2004 in W.P.(C) No.3195 of 2004 to review Ext.P3 judgment R.P. was disposed of by this court as per Ext. P4 order directing the Execution Court to consider and dispose of Ext.P1 on merit. The Execution Court allowed E.A.1829 of 2003 as per Ext.P5 order. As per the said order, the Execution court directed the first respondent to deposit Rs.10,80,000/within one month. On such deposit, the property shall be delivered to the first respondent. The Execution Court also ordered that the petitioner will be entitled to withdraw the amount only on final determination by he court regarding the value of improvements. As per the petitioner, such a procedure is highly illegal and Ext.P5 order is without jurisdiction and beyond of the power vested in it. The said order is challenged in this Writ Petition. 2. Heard learned counsel on both sides. A decree was passed by the Sub Court, Irinjalakuda in O.S.No.294 of 1987 in favour of the first respondent/decree holder for recovery of possession of the decree schedule property E.P.No.331 of 1999 was filed for execution of the decree. Value of improvements was assessed at the trial stage and at the request of the petitioner herein, a Commission was appointed and the Commissioner assessed the value of improvements at Rs.12,15,000/- in the execution also. E.A.NO.1829 of 2003 is filed by the decree holder for allowing him to deposit Rs.6,78,566/before the Execution Court and take delivery of the decree schedule property immediately. The petitioner along with the second respondent herein filed Ext.P2 counter statement challenging the maintainability of the petition along with other contention. On hearing the parties, the Execution Court originally closed the E.A. and posted for hearing along with E.P. on 27.1.2004. Against the said order, the first respondent filed Writ Petition No.3195 of 2004 before this court and this court at the admission stage itself directed the Execution Court to consider and dispose of Ext. P1 on merit. On hearing the parties, the Execution Court originally closed the E.A. and posted for hearing along with E.P. on 27.1.2004. Against the said order, the first respondent filed Writ Petition No.3195 of 2004 before this court and this court at the admission stage itself directed the Execution Court to consider and dispose of Ext. P1 on merit. The Review Petition filed by the petitioner herein was disposed of with a direction that the Execution Court shall consider and dispose the petition afresh on merit. Thereafter, the Execution Court passed Ext. P5 impugned order. The definite contention of the petitioner is that such a petition is not maintainable in law. The petitioner being a tenant entitled to get of improvements. As per Section 4 of the Kerala Compensation for Tenants Improvements Act, 1958, 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 no been paid; and every tenant to whom compensation is so due shall, notwithstanding the determination of the tenancy of the payment of the mortgage money or premium, if any, be entitled to remain in possession until eviction in execution of a decree or order of court. So, according to the learned counsel the tenant is entitled to remain in possession of the property unless compensation had been finally decided and paid. Here, the Commissioner has assessed the value of improvement as Rs.12,15,000/-. But what exactly is the amount of compensation is not finally decided by the Execution Court. The prayer of the first respondent is to grant permission to deposit Rs.6,78,566/- and direct to effect delivery immediately. Without depositing the entire Value of improvements, the decree holder is not entitled to get delivery of the property and the tenants are not liable to surrender possession. Before delivery of the property, the court below ought to have ascertained the amount of compensation due to the tenant and only after payment Delivery can be ordered. Before payment of compensation, the decree holder is not entitled to take delivery of the property. 3. Before delivery of the property, the court below ought to have ascertained the amount of compensation due to the tenant and only after payment Delivery can be ordered. Before payment of compensation, the decree holder is not entitled to take delivery of the property. 3. The effect of the provision contained in Clause 3 of Section 5 read with clause 1 of Section 4 is to postpone the execution of the decree for delivery of the properties until the tenants claim for value of improvements is finally settled. It operates by implication as a statutory stay of eviction of the tenant from the holding pending adjudication of the execution court of the claim put forward by him for additional compensation as contemplated by clause 3 of Section 5. As per the decision reported in Kadambalithaya v. Beepathumma (1959 KLT 1089) the statue 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 the tenant has been ascertained and paid. The possession of the property practically confers on him a shield or protection to enforce his claims for value of improvements under the provisions of the Act. Therefore, the emphasis is on the tenants’ right to remain in possession until payment of compensation. Before payment, no eviction shall be ordered. 4. Admittedly, the value of the improvements was not finally settled by the Execution Court. The decree holder has offered to deposit only a portion of the amount assessed by the Commissioner. It is submitted by the learned counsel for the first respondent/decree holder that the decree holder is a 66 year old lady and because of the untenable contention of the tenant, she cannot enjoy the fruits of the decree. The decree holder disputes that the petitioner is not entitled to get the entire value of improvements assessed by the Commissioner. According to her, certain constructions were made by the petitioner while injunction order restraining further construction was in force. Along with counter statement, she has filed a number of documents. Ext.R1(c) is an affidavit filed by the present petitioner in C.M.P.No.1133 of 1999 in S.A.No.666 of 1997 of this court. According to the learned counsel, averments in the counter affidavit itself would show that there was an order of injunction against the petitioner not to make any further construction. Along with counter statement, she has filed a number of documents. Ext.R1(c) is an affidavit filed by the present petitioner in C.M.P.No.1133 of 1999 in S.A.No.666 of 1997 of this court. According to the learned counsel, averments in the counter affidavit itself would show that there was an order of injunction against the petitioner not to make any further construction. It is averred therein that he has not constructed the first floor to the existing building after injunction, but 2 or 3 weeks back a small room with an attached toilet was constructed and permission was sought for to complete the flooring, plaster works etc and he undertook that he will not claim any value of improvements and he shall remove the same at his risk and costs. So, according to the first respondent, it would clearly show that the petitioner was restrained from any further construction. But nobody has produced the final order in the I.A. So, whether the petitioner is entitled to get the value of improvements assessed by the Commissioner is yet to be decided. 5. Ext. P1 petition is filed by the decree holder under Section 151 of the C.P.C. Section 151 of the C.P.C. can be invoked for the ends of justice where there is no specific provision. As per the Kerala Compensation For Tenants Improvements Act, 1958, a tenant is entitled to be in possession of the property until the last pie of the compensation is paid. The Execution Court passed the order in the following terms: “1. The petitioner is directed to deposit Rs.10,80,000/- (i.e. Rs.12,15,000/- - Rs.1,35,000/-) within one month. 2. On such deposit, the property would be delivered over to petitioner, at which time the respondents shall surrender possession without protest. 3. The respondents will be entitled to withdraw only the amount, on a final determination by the court regarding value of improvements for which purpose the E.P. Will be kept alive. 4. The parties are directed to suffer their respective costs.” In the impugned order, the Execution Court without deciding the compensation due to the decree holder/tenant ordered to deposit an amount of Rs.10,80,000/-, a portion of the value of improvement assessed and on such deposit the property shall be delivered over to the decree holder and the judgment debtor shall surrender possession without protest. But the judgment debtors will be entitled to withdraw the amount on final determination by the court regarding the value of improvements. Since it is against the provisions of the Tenants Improvement Act, the court is not competent to pass such an order. The judgment debtor is not legally liable to surrender the property unless’ the entire compensation is paid. Hence, I am constrained to set aside the impugned order. However, I direct the Execution Court to dispose of the Execution Petition immediately after the reopening of the court after summer vacation of 2004, at any rate within one month after reopening. The Writ Petition is disposed of accordingly.