YOHANNAN Vs. GEEVARUGHESE
HIGH COURT OF KERALA
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(1.) In execution of a decree for redemption of a mortgage and puravaipa on payment of the amounts thereunder and the value of improvements, the respondent judgment debtor made an application for the revaluation of improvements in accordance with the provisions of Act X of 1956. This was allowed by the execution Court so far as improvements made subsequent to the date of the decree were concerned. The decree holder preferred an appeal which was disposed of by the Additional District Judge, Mavelikara. By his judgment he allowed the revaluation of improvements from the date of the puravaipa. Hence the decree holder has come up in second appeal.
(2.) The mortgage sought to be redeemed was of the year 1079. This was followed by Ext. B puravaipa in the year 1097, by which the claim for the value of improvements made till then was settled and adjusted. Stipulations were made in Ext. B as to the valuation of improvements which may be made subsequently. By its decree dated June 4, 1956, the Trial Court adjudged the value of improvements in accordance with the stipulations in Ext. B. By his application the judgment debtor had no doubt sought to reopen the valuation of all improvements which were made after the date of Ext. B and this is what has now been allowed to him by the Additional District Judge. The Judge apparently ommitted to notice that the judgment debtor had preferred no appeal against the order of the execution court.
(3.) The decree having become final, it can be varied or modified, if at all, only in the manner and to the extent provided by Act X of 1956. S.17 of the Act says, that "nothing in any contract entered into before the commencement of this Act shall take away or limit the right of a tenant to make improvement, and to claim compensation for them in accordance with the provisions of the Act." The non obstante clause refers only to a "contract" and not to a decree, and the reasoning of the Judge as founded on S.17 is entirely wide of the mark. S.4 of the Act which was relied on by the judgment debtor lays down a rule of substantive law, that a tenant shall, on eviction, be entitled to compensation for improvements which were made by him and that he is entitled to remain in possession until evicted in execution of a decree or order of court. This does not enable a decree to be reopened. S.5 sub-section (1) of the Act may, as contended, relate to decrees which are passed after the commencement of the Act, because it provides how compensation shall be assessed under the Act. Sub-section 3 of S.5 provides generally, that compensation for improvements made subsequent to the date up to which compensation has been adjudged in the decree, and the revaluation of improvements on certain conditions being fulfilled shall be allowed by order of the court executing the decree and that the decree shall be varied in accordance with such order. The terms of this sub-section are not limited, as contended for the judgment debtor, to decrees which are passed after the date of the commencement of the Act, and if they are, S.4 being inapplicable, the judgment debtor would have no right to reopen a decree passed before the date of the commencement of the Act to any extent. My attention was not invited to any other provision in the Act under which a decree can be reopened. It was precisely on the footing that S.5 sub-section (3) enables a decree passed before the date of the Act to be reopened, that a Division Bench of this Court held in Gangadharan v. Lakshmanan ( 1957 KLT 1274 : 1958 KLJ 1) that improvements made subsequent to the date on which they were valued by a commissioner for passing the decree, could be assessed and the decree reopened after the Act.
I therefore come to the conclusion, that the order passed by the Additional District Judge cannot stand. It is accordingly set aside and the order of the execution court is restored. The Second appeal is allowed with costs in this Court.;
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