AMMALUKUTTY AMMA Vs. VASUDEVAN NAIRA
HIGH COURT OF KERALA
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(1.) THIS is a petition by the appellant to review the judgment in the second appeal. The second appeal was dismissed on two grounds. One is that the appellant is not entitled to revaluation of the building for which compensation was determined before the decree because of S. 5 (3) of the kerala Compensation for Tenants Improvements Act, 1958 (Act 29 of 1958) and the second ground is that the appellant is not entitled to fixity of tenure.
(2.) THE ground for the review petition is that the view taken by this Court on the first ground is vitiated by an error apparent on the face of the record. THE first ground was disposed of by this Court thus: "that S. 5 (3) of Act 29 of 1958 will not enable the execution court to revalue a building for which compensation has been fixed under the decree of the court has been the view taken in a series of decisions of this Court".
It Is contended by counsel for the petitioner that the impression in the mind of the Court at the time the appeal was disposed of, that the interpretation of S. 5 (3) of Act 29 of 1958 has been concluded by series of decisions of this Court, is not correct and it will constitute an error apparent on the face of the record.
As was pointed out by the Supreme Court in Hari Vishnu kamath v. Syed Ahmad Ishaque and Others AIR 1955 SC 233, what is an error apparent on the face of the record cannot be defined precisely or exhaustively there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. It will be legitimate to assume that at the time when the second appeal was disposed of, it was assumed that the decisions are to the effect that for purposes of revaluation of a building S. 5 (3) of the Act cannot apply. But no exact decision of this Court has been brought to my notice taking that view. I, therefore, hold that there is an error apparent on the face of the record in respect of the decision on the first ground and I reopen the same. But I heard counsel on both sides on the claim of the appellant for a revaluation of the building both under S. 5 (3) of Act 29 of 1958 and also under S. 51 of the T. P. Act.
(3.) THE second appeal arises out of an order in execution of the decree. THE decree is for recovery of possession of the plaint schedule property after setting aside the sale deed executed by some of the members of a marumakkathayam tarwad. THE trial court's decree was passed on 8-7-1957 and the value of the building was determined at Rs. 16,000/- and odd in the decree of the trial court on the basis of the commissioner's report dated 27-6-1966. It is the admitted case that the value of improvements fixed by the decree was not deposited within a reasonable time of the decree. THEre was an appeal by the plaintiff against the decree of the trial court objecting to the claim for value of improvements which was pending for some years. Finally the decree of the trial court was confirmed and the appeal was dismissed.
It was thereafter that the plaintiff filed the petition for execution and deposited the compensation for improvements fixed under the trial court's decree. In the meanwhile, the defendant's interest in the building was sold in court auction and the court auction purchaser assigned it to the appellant who claimed enhancement of compensation in the execution court because of the rise in prices of materials. No compensation for trees is involved in this case.;
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