SKARIA Vs. ACKAMMAL VARGHESE
LAWS(KER)-1963-10-11
HIGH COURT OF KERALA
Decided on October 10,1963

SKARIA Appellant
VERSUS
ACKAMMAL VARGHESE Respondents


Cited Judgements :-

LAKSHMIKUTTY AMMA VS. PONNU AMMA [LAWS(KER)-1967-12-11] [REFERRED TO]


JUDGEMENT

- (1.)This appeal has arisen out of a claim for additional compensation for improvements under S.5(3) of the Kerala Compensation for Tenants' Improvements Act, XXIX of 1958, made in a proceeding under S.11 of the Kerala Agriculturists Debt Relief Act, XXXI of 1953. On an application under S.11 of the latter Act the Subordinate Judge has, on December 23, 1960, allowed the mortgagor "to take delivery of the properties through court" on his depositing Rs. 12,125 as one half of the mortgage amount and Rs. 14,149-27 nP. as compensation for the mortgagee's improvements on the properties. The mortgagee appealed to this court in A. S. No. 51 of 1961 against the fixation of the compensation; and here the parties came to a settlement by which the value of improvements was fixed at Rs. 4000/- above the sum found by the court below and the mortgagor relinquished all his claims in the area, if any, in excess of 3.95 acres in item No. 3 of the mortgaged properties. When the mortgagor proceeded to take delivery of the properties through court, the appellant mortgagee claimed additional compensation for improvements made on the property after the commissioner's visit thereto to assess improvements, and that claim has been disallowed by the Court below. Hence this appeal.
(2.)The material question here is whether, in a proceeding in redemption under S.11 of the Kerala Agriculturists' Debt Relief Act, the mortgagee is entitled to claim benefit of S.5(3) of the Kerala Compensation for Tenants Improvements Act. S.11 of the Debt Relief Act, as amended by Act II of 1961 with retrospective effect from the very commencement of the main Act, reads:
"11. Special provision in respect of usufructuary mortgages by agriculturists

(1) Subject to the provisions of S.25, this section applies to all subsisting mortgages executed by an agriculturist at any time before the commencement of this Act and by virtue of which the mortgagee is in possession of the property mortgaged to him or any portion thereof.

Explanation.-- A mortgagee shall be deemed to be in possession of the property mortgaged to him or any portion thereof, notwithstanding that he has leased it to any person other than the mortgagor.

(2) Notwithstanding that the period of the mortgage has not expired, the mortgagor shall on application be entitled, subject to the provisions of sub-s.(3) and (4), to recover the property mortgaged on depositing in the court

(a) one half of the mortgage amount;

(b) where payment of interest to the mortgagee has been stipulated for, in respect of the principal amount secured by the mortgage or any portion thereof, in addition to the usufruct from the property, or in respect of any other sum payable to the mortgagee by the mortgagor in his capacity as such and there has been arrears of such interest, such arrears; and

(c) the value of improvements, if any; effected subsequent to the date of the mortgage by the mortgagee in the property mortgaged, as determined by the court.

(3) Along with the application made under sub-s.(2), the mortgagor shall pay court fees as for a suit for redemption on the balance of the mortgage amount and the court shall put the mortgagor in possession of the property and pass an order allowing the mortgagee to recover by sale of the mortgaged property the said balance amount in ten equal half yearly instalments together with interest accrued due on such balance outstanding till the date of payment of each instalment at five per cent per annum, the first instalment being payable within a period of six months from the date on which the mortgagor recovered possession of the property mortgaged. On payment of the last instalment the mortgage shall be deemed to be discharged and an order passed under this sub-section shall be deemed to be a decree.

(4) Where the property mortgaged has been leased out by the mortgagee, the lease shall, except in the case of tenants to whom the provisions of S.43 of the Malabar Tenancy Act, 1929, apply stand terminated when the mortgagor recovers possession of the property mortgaged and thereupon any value of improvements due to the lessee shall be paid to him out of the amount deposited by the mortgagor under sub-s.(2) towards the value of improvements ................".

Under the above provisions the court has to put the mortgagor in possession of the properties on his depositing in court one half of the mortgage amount and the value of improvements as determined by the court, there being no question of any interest payable under the concerned mortgage, and order realisation of the other half of the mortgage amount by the mortgagee in ten equal half yearly instalments by sale of the mortgaged property. No order entitling the mortgagor to take execution at his convenience to evict the mortgagee from the property is contemplated by the above provisions. Thus the disposal of an application under S.11 of the Debt Relief Act is by the issue of a warrant to the Amin to "put the mortgagor in possession of the property" and by passing an order allowing the mortgagee to recover the unpaid half of his mortgage amount. Counsel for the appellant pointed out that an order under sub-s.(3) has to be deemed to be a decree. That is so; but the only order made mention of in that sub-section is the one allowing the mortgagee to recover the unpaid half of the mortgage amount in ten half yearly instalments. A comparison of this Section with the preceding S.10 shows that, where executable decrees are contemplated the Act has expressly provided for the same. The expression in S.10 is:

".... the Court shall, if the debtor is an agriculturist, pass a decree for immediate payment of such instalment or instalments as would have become due...."

A decree for immediate payment, despite the word immediate, is a decree on which other proceedings in execution have to be taken for its enforcement. S.11 avoids a like situation which is apt to delay relief to the agriculturist mortgagor debtor. No appreciable interval between the determination of the amount payable by the debtor and the delivery of the properties to him is contemplated in or tolerated by the section.

(3.)Now to turn to S.5 of the Kerala Compensation for Tenants' Improvements Act, XXIX of 1958, it reads thus:
"5. Decree in eviction to be conditional on payment of compensation.-- (1) In a suit for eviction instituted against a tenant in which the plaintiff succeeds and the defendant establishes a claim for compensation clue 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.

(2) If in such suit the court finds any sum of money due by the defendant to the plaintiff for rent, or otherwise in respect of the tenancy, the court shall set off such sum against the sum found due under sub-s.(1), and shall pass a decree declaring as the amount payable to him on eviction the amount, if any, remaining due to the defendant after such set off:

Provided that the court shall not set off any sum of money due for rent as aforesaid, if such sum is not legally recoverable.

(3) 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 revaluation 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.

(4) Every matter arising under sub-s.(3) shall be deemed to be a question relating to the execution of a decree within the meaning of sub-s.(1) of S.47 of the Code of Civil Procedure, 1908."

Obviously the section relates to proceedings in a suit; sub-s.(1) and (2) dealing with pre decree questions, and sub-s.(3) and (4) with post decree questions. The time lag between the passing of a decree and its realisation in execution is notorious in this country. The large number of cases in which the plea of limitation of 12 years under S.48 CPC. has arisen in our Courts bear ample testimony to that delay. It is to meet the inequities arising from long delayed evictions that sub-s.(3) of S.5 has been enacted.

But, the design of S.11 of the Kerala Agriculturists Debt Relief Act is far different. It aims relief to agriculturist debtors by enabling them to get their property in all expedition. No executable order or decree is made in favour of the debtor mortgagor, but only a warrant for delivery of the property to him as soon as the amount payable by him is determined and deposited in court. No interval affording time to effect any appreciable work on the property after a determination of the amount payable to the creditor and the issue of a warrant for delivery of the property is contemplated by S.11 of the Debt Relief Act. The absence of any provision for reassessment of compensation payable to the mortgagee, even though the Act was passed immediately after the Act XXIX of 1958, is significant. The omission appears to be deliberate, particularly because it is consistent with the object of the Act to give relief to debtors, and is apt to avoid delays designed to aggravate the debtors' liability. We hold that the mortgagee in a proceeding under S.11 of the Debt Relief Act is not entitled to claim a supplementary assessment of the value of his further improvements under S.5(3) of the Act, XXIX of 1958.

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