Kumaran Rama Panicker vs Variathu Ouseph

Subramania Iyer, J.—These two Civil Misc. Appeals presented by the Plaintiff decree-holder are before a Full Bench on account of a reference made thereto by a Division Bench of which one of us was a member.

Both the appeals are directed against an order of remand made by the District Judge of Alleppey, I say ''an order of remand'' with a purpose because, though two appeals Nos. 297 and 338 of 1124 on the file of the District Judge were heard by him, he wrote but one judgment reversing two separate orders in execution passed by the Munsiff and remanding both the matters for fresh disposal.

The learned Judge passed the following order in A.S. 297 of 1124 on 22-3-1125;

Adjourned for hearing - 29-3-1125. The Appellant will apply to advance the hearing of A.S. 338 of 1124 which he wants to be heard along with this to the above date in the meanwhile.

This perhaps accounts for the single order that the learned Judge passed. Two Civil Misc. Appeals having been filed before this Court, certified copy of the order was produced only in one. This circumstance having been pointed cut as a defect, by the office, the matter was placed before la Division Bench, when the omission was explained by a statement, dated 20-9-1950 stating the facts as aforesaid and that explanation was accepted by order dated 22-9-1950.

The facts may be briefly stated. The decree in execution of which these proceedings arise, was passed by the District Munsiff in O.S. 996 of 1101 on 19-12-1103. It was for redemption of a kanam. The kanam demise comprised three items of property, of which the first is a paramba and trees thereon, the second a chira and trees thereon and the third a house situate on the first item. The 3rd Defendant was awarded a certain amount by way of value of improvements and he was rendered liable for the dues claimed by the Plaintiff before suit as also thereafter until three years from date of the decree or delivery of properties whichever is earlier. There were cross, claims under the decree between the Plaintiff and Defendant 3 as regards costs. All the cross claims were ordered to be set off.

These proceedings arise out of E.P. 1615/18 (Sherthalai Munsiff''s Court, which was transferred to the Munsiff''s Court at Vaikom. and numbered there as E.P. 892/1120) filed by the decree-holder on 17-12-1118. In that application the decree-holder alleged active waste by Defendant 3 by cutting and removing trees for which value had been awarded in the decree as also other trees comprised in the kanam holding apparently belonging and deliverable to the Plaintiff for which no compensation had to be paid. It was also alleged that Defendant 3 defaulted in taking timely and proper care of the building which was thereby rendered useless and that Defendant 3 was liable therefor. It was prayed that the damages occasioned to the Plaintiff on account of the active and permissive waste as aforesaid may be assessed and awarded to him. The 3rd Defendant appears to have filed an objection petition which was read by the Munsiff. (See his Order). At the instance of the decree-holder the Court deputed a Commissioner to inspect the properties and assess the waste. The Commissioner in the due course submitted a report. Before orders were passed by the Court upon the said claim of the decree-holder, Defendant 3 filed C.M.P. 7382/1124 dated 12-4-24 supported by an affidavit of even date explaining the absence of trees as due to their old age and ''vis major'', and claiming compensation for having planted certain trees for the protection and maintenance of the property. It was also stated therein that the decree-holder expressed his intention not to execute the decree as it was unprofitable on account of the depression. On 25-6-1124 the learned Munsiff passed the following order on this C.M.P.

Heard Vakils. This application is to assess the value of improvements effected after decree by the Defendant, if any is opposed by the decree-holder. The execution application was filed on 17-11-1118. The Plaintiff took out a commission to assess waste. In all these years Defendant 3 has not moved his little finger to assess this. Now in 1124 when the case is to be disposed of after waste is determined by a Commissioner, this petition is moved. There is no bona fides in this: application except to delay the delivery. Improvements after decree, if there be any, is discountenanced. Thus I do not see my way to allow this application. Hence this is rejected.

A.S. 338/1124, was against this order.

On 27-6-1124 the Munsiff passed the following order upon the execution petition which formed the subject-matter of A.S. 297 of 1124:

Heard Vakils. Exhibit A is the Commission report for assessing the waste. The Commissioner was examined besides the parties. It is admitted by both sides that some trees have been lost. The Defendant would say that is the act of God while the Plaintiff would say that it is wilful. However the commission report is on the whole fair and acceptable with slight modification and I award Rs. 65 Chs. 3 Cash 4 as a rebate for waste. The decree-holder shall deposit the balance forthwith and apply for delivery, failing which the Defendant is not liable for any loss. Ordered accordingly.

The learned District Judge, as already stated considered both the appeals together, reversed the orders appealed against and remanded the matters to the Munsiff for consideration and disposal afresh. The ground of the order of remand was the absence of a consideration and decision by the Munsiff of the question as to whether the waste alleged was the result of vis major as contended by the Defendant or not and also of the question as to whether the work for which compensation was claimed by Defendant 3 was one necessary to protect and preserve the property which was the case set up by that Defendant. A finding on the above questions which required a consideration of facts was deemed necessary by the learned Judge to adjudicate upon the liability or the immunity of the rights claimed by the parties. The correctness of the order of remand is canvassed in these Civil Miscellaneous Appeals.

The claim for compensation that was made by the Plaintiff against Defendant 3 and the immunity from liability as also the claim for compensation for work done, made by Defendant 3 are as the aforesaid facts would show, really aspects of the same question. The matter is really one and is one of: fact and on a finding thereupon depends the rights and liabilities of the parties. Such a finding is necessary for a proper disposal of the matter.

In my judgment, therefore, the order of remand passed by the learned District Judge is correct and ought to be upheld. The Civil Miscellaneous Appeals should therefore, be dismissed. Costs will abide and follow the result.

In this view it is unnecessary at this stage to consider the various questions mentioned in the order of reference which are complicated and highly controversial. A discussion of these questions at this stage would be merely academic and would not lead to any result as no final decision regarding the rights of parties can now be arrived at. The reference to the Full Bench is not of a specific question or questions but of the appeals themselves.

Having had the opportunity to read the judgments that my learned brOrs. are delivering, it has become necessary to add the following to my judgment which I prepared first.

Redemption of mortgage is the termination of the relationship between the mortgagor and the mortgagee after determination of the rights and liabilities of the parties, and settlement and adjustment of all the accounts between them, leaving nothing outstanding. A decree for redemption does not purport or operate to bring about a cessation of the relationship of mortgagor and mortgagee which would subsist even after the decree and until the time of actual redemption. See ''Raghunath Singh v. Mt. Hansraj Kunwar'' 56 All 561 (PC), and ''Viroopakshan Nambudripad v. Putipre Tarwad Karnavan'' ILR (1937) Mad 545 (FB). The existence of a decree for redemption will not bar a fresh suit for the same relief. See ''Subba Rao v. Matapalli Raju'' AIR 1950 FC 1. There is, therefore, no merger of the cause of action in the case of a decree for redemption, as in certain other cases where, when a cause of action is put in suit and a decree follows, the decree and that alone would determine the rights of parties and can be looked into or relied upon for that purpose. ''Quicquid Plantatur solo solo cedit, (Wentw, Off. Ex., 14th Edn. 145), whatever is affixed to the soil belongs thereto, is a maxim not accepted or applied in this country. ''Vasudevan Nambudripad v. Valia Chathu Achan'' 24 Mad 47 (FB) : 27 Mad 21. According to the customary law prevalent in Cochin, Travancore and Malabar, a tenant including a mortgagee, is entitled to improve the land, get compensation for unexhausted improvements existing at the time of delivery of possession back, and to retain, possession thereof until such payment, even without a provision in that behalf but in the absence of a prohibition against effecting improvements. ''Chandi Avira v. Thomman Varkey'' (1951) KLT 7 (FB) at p. 26. This, customary right was given statutory recognition in Cochin and Malabar. The statutes even invalidated agreements entered into after a specified date prohibiting the effecting of improvements or preventing a claim for compensation therefor. Madras Act, I of 1887, was the earliest legislation in Malabar and Act II of 1090 in the Cochin State. Act I of 1887 was repealed by Madras Act I of 1900 which was amended by Act II of 1901. There was no legislation in the erstwhile Travancore State. The Transfer of Property Act is now applicable to the Travancore-Cochin State.

The said statutes provided for the ascertainment and payment of value of improvements effected even after decree and it was provided that questions relating thereto would be deemed to be among those triable by the Court executing the decree within the meaning of the section of the CPC providing for the determination of all questions relating to the execution, discharge or satisfaction of the decree by the Court executing it.

The procedure to determine and direct payment of value of improvements whenever effected, whether before or after the decree, in proceedings in execution was not, however, one inaugurated by the said statutes. The practice that prevailed in the Presidency of Madras until July 1880 was to reserve the question for execution. The system of holding an enquiry into the matter of value of improvements before decree originated by a Circular order issued by the High Court dated 14-7-1880. (Weir''s Rules of Practice, page 197, See also ''Krishna Pattar v. Sreenivasa Pattar'' 20 Mad 124 at p. 126.) A similar practice seems to have prevailed in the State of Cochin (see 4 Select Decisions 97) though there also that practice was stopped and the system of ascertaining the improvements even at the trial was introduced. The prior practice of deciding questions of improvements and their value in execution rested on the basis that the question comes within the ambit of the aforesaid provision of the Code of Civil Procedure. The statute which provided for the said matter being deemed to be a question within the meaning of the said provision of the CPC was, therefore, no innovation but was merely a statutory recognition of an antecedent practice.

Improvements on the property decreed to be delivered may, for various reasons, appreciate or depreciate in number, nature or value by the time of actual delivery. There may be a long lapse of time between the date of the decree and the date of delivery. The CPC only prohibits a fresh application for execution beyond 12 years of the date of the decree. Applications presented within that period could be prosecuted to termination irrespective of any length of time. The Defendant directed to deliver the property with improvements on payment of their value is not entitled to put the decree in execution. In the interval, the relationship of the parties is, as already stated, that of mortgagor and mortgagee with the latter possessing his rights as regards the effecting of improvements, claiming value therefore and of retention of the property till such value is paid. The mortgagee or tenant may even claim value for trees of spontaneous growth during the currency of the mortgage or lease.

These rights are possessed by the mortgagee under the substantive law and he cannot be deprived of them by the law of procedure.

Substantive law is concerned with the ends which the administration of justice seeks. Procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated.

Salmond on Jurisprudence, 10th Edn. 1947, p. 476.

It is in this view that an enquiry into what are the rights of the parties on the date of actual redemption is made (see 3 Select Decisions 97 a decision of the erstwhile High Court of Cochin of the year 1073, that is long before the first tenancy legislation there). In ''Krishna Pattar v. Sreenivasa Pattar'' 20 Mad 124 where the question of the liability of the Defendant, for waste committed after decree arose, the learned Judges, Subramania Iyer and Boddam JJ" held that the question could be considered in execution and supported their view by relying upon the fact that the Defendant is entitled to have the value of improvements assessed afresh in proceedings in execution though it, had been fixed before decree as was held in ''Ramunni v. Shanku'' 10 Mad 367. Their Lordships say:

Suppose a mortgagor, having obtained a decree for redemption, does not execute it but allows the property to remain in the hands of the mortgagee for a considerable time and the latter during that period makes more improvements. Surely, his right to the value of those cannot be denied, whether the question arises in execution proceedings or in a separate suit; nay, according to ''Ramunni v. Shanku'' 10 Mad 367 even in respect of improvements referred to in a decree which the mortgagor does execute, the mortgagee can in such execution proceedings, claim a re-valuation if he can show that, since the passing of the decree, the value of the improvements has increased. How then can the mortgagor, with any justice, be held to be disentitled to obtain a reduction of the amount mentioned in the decree if he can prove that any part of the improvements assessed therein, has since ceased to exist.

A Full Bench of the Cochin High Court in ''18 CLR 297 '' held that the question of damages for waste cannot be gone into in execution. The Bombay High Court has held in Hari Shridhar Prabhu Desai Vs. Sakharam Padmanna Magdum, and Bai Lalbu Vs. Mohanlal Gokaldas Javeri, that waste committed after decree can be considered in proceedings in execution. In the erstwhile Travancore High Court there had been decisions either way both in respect of improvements and in respect of waste. See ''Kunjen Raman v. Kochukunju Raman'' 8 Tray L.J. 299, ''Varki Avira Tharakan v. Raman Nilakantan'' 28 Trav L.R. 129, ''Kalian Pappu v. Ayyan Kochu Pillai'' 27 Trav L J 1067, ''Chacko Kurien v. Ulahannan Ittiavira'' 32 Trav L.J. 968, ''Narayan Anandan v. Raman Anandan'' 33 Trav L.J. 463 (FB), ''Avira Tharakan v. Nilakantan'' 2 Trav L.J. 478 (FB), ''30 Trav L.R. 245'', ''18 Trav L.J. 1280'', ''38 Trav L R 291'', ''20 Trav L R 151'', ''11 Trav L.R. 211'', ''Punnam v. Aiyappan'' 26 Trav L.J. 657 and ''Parukutty Amma v. Achuthan'' 1948 Trav L.R. 209 (FB).

The High Court of Allahabad held in Bhatta Gordhan Lal Vs. Shri Thakur Radha Kant Jugal Sarup Ji Maharaj through trustees and Others, that waste committed after decree cannot be considered in execution proceedings. This Court in ''John Francis Carlos v. Lakshmikutty Amma'' 1949 KLT 130 took the view that the claim for damage for waste committed after decree cannot be viewed as a question relating to the execution, discharge or satisfaction of the decree which could be considered in proceedings in execution. These references which are merely illustrative and by no means exhaustive indicate the conflict of judicial opinion upon the question. There does not, however, appear to be any conflict of opinion on the question as to whether if the property of the decree-holder (land with buildings or trees thereon) decreed to be delivered is wasted by the judgment-debtor, such waste could not be assessed in execution, nor does there seem to have been any instance in which, when the deterioration in or disappearance of the property is occasioned by ''vis major'', the Defendant has been rendered liable. Again there does not appear to have been also a case in which it has been held that when the mortgagee or tenant in possession has done acts necessary for the preservation of the property after decree for its delivery, the expenditure incurred in that connection cannot be ascertained and awarded to the mortgagee or tenant in execution before depriving the party of possession. In this case, on the facts without determining the cause of the disappearance of certain trees which, according to the decree-holder, is due to the positive act of the Defendant, while according to the latter, it is due to ''vis major'', and without also further determining whether the trees whose disappearance is complained of, were the trees of the decree- holder or of the judgment-debtor, it is not possible to decide the question. Further, the improvement for which value is claimed by the judgment-debtor, is as already stated, claimed to be a work done which was necessary to protect the property, in which event, though the judgment-debtor may not be entitled, to their value as between a landlord and tenant he would surely be entitled to the cost incurred in effecting the improvement if really they were, and had to be, made for protecting and maintaining the property, which is the contention urged on behalf of the judgment-debtor. A finding upon this question of fact would appear also to be essential for a final disposal of the matter.

I do not enter into a discussion of the nice, delicate, and difficult questions above indicated or record a decision as in my view, on the facts, they do not fall to be decided in these Civil Miscellaneous Appeals. In my judgment it is now premature to decide those questions as they would arise only alter necessary findings upon the facts are recorded.

The learned District Judge having in his discretion thought fit to remand the cases to the Munsiff for recording the necessary findings, it appears to me that interference with his order is not justified unless it is found that the learned Judge has not, in fact, exercised any discretion or, if he has exercised it, such exercise was capricious or opposed to any principle of law. The order of the District judge does not appear to be open to any such criticism and that being the case even if Anr. view may be possible, nay preferable, that circumstance will not render interference competent. The parties are entitled to have the benefit of a finding on a question of fact recorded by the trial Court, and to have that finding considered by the Court of first appeal. If the two Courts concur, the party in whose favour there is such a concurrent finding, has an obvious advantage. To compel the District Judge to record a finding without the help of a finding by the Munsiff would be to deprive the parties of the aforesaid advantage for which there is hardly any justification.

The reference to the Full Bench being of the two Civil Misc. Appeals themselves and not of particular question, a decision on the questions indicated in the order is not necessary if they are not found to arise on the facts for, if on the facts the questions do not arise, any decision rendered or opinion given may be relegated to the category of ''obiter dicta''.

Gangadhara Menon, J.

These appeals arise out of the orders passed in execution of the decree in O. S. 996 of 1101 of the Vaikom Munsiff''s Court. The assignee-decree-holder is the Appellant in both the appeals. The suit was for redemption. The decree in the case was passed on 19-12-1103. Under the decree, the Plaintiff was allowed to recover possession of the plaint properties from Defendant 3 on deposit in Court for payment to Defendant 3 of Rs. 1217 1/2 towards mortgage-money, Rs. 197-Chs. 9-5 Cash towards value of plantations and Rs. 224-12-11 towards value of the building. On 17-11-1118, in continuation of a previous execution application dated 12-3-1112, the assignee-decree-holder filed an execution application for recovery of possession of the properties. In it he alleged that Defendant 3 committed waste in the properties by cutting and removing trees therefrom after the date of the decree and by allowing the building in respect of which value was awarded under the decree, to go into ruin. The assignee-decree-holder therefore prayed that damages so occasioned may be assessed by the issue of a commission and that he may be permitted to recover possession of the properties on deposit of the amounts due after setting off the damages for waste. This application of 1118 which was filed in the Sherthallai Munsiff''s Court while the case was pending there was since transferred to the Vaikom Munsiff''s Court where it was renumbered as E.P. 892/1120. 3rd Defendant filed his objections to this execution application on 10-12-1120, stating that he has not committed any waste, that the trees were lost by ''vis major'' and that he has effected improvements after the decree for which value has to be paid to him before he is evicted from the properties. A commission to assess waste was issued as prayed for by the assignee-decree-holder and the Commissioner submitted his report on 18-7-1121. But before any orders were passed in respect of the claim for damages for waste, Defendant 3 filed C.M.P. No. 7382 of 1124 dated 12-4-1124 reiterating his claim for value of the trees planted by him after the date of the decree and praying for the issue of a commission for assessing the value of such plantations. The claim of Defendant 3 for value of improvements effected after the decree was repelled by the execution Court by the following order dated 25-6-1124: (His Lordship then set out the two orders passed by the Munsif as already printed in paras 5 and 6).

From both the above orders, Defendant 3 appealed to the District Court in A.S. 297 of 1124 and A.S. 338 of 1124. A.S. 297 of 1124 was the appeal against the order allowing damages for waste and A.S. 338 of 1124 was the appeal from the order rejecting 3rd Defendant''s claim for value of improvements effected after the decree. Those appeals were heard together. The learned Judge was of the view that both the claims regarding waste committed in the properties after the date of the decree and regarding the value of improvements effected after the decree are questions which could be gone into in execution. He was also of the view that the learned Munsiff was wrong in awarding damages for waste without considering the question as to whether the destruction of the trees was on account of ''vis major'' or due to active waste committed by the mortgagee. Therefore, in one judgment, the learned Judge set aside both the orders of the Munsiff and remanded the execution application for fresh disposal. These appeals by the assignee-decree-holder are directed against the above order of remand. C.M.A. 211 of 1950 is directed against the order in A.S. 297 of 1124 and C.M.A. 212 of 1950 is from the order in A.S. 338 of 1124.

When these appeals came before a Division Bench, in C.M.A. 212 of 1950, the learned Advocate for the Appellant contended that the mortgagee is not entitled to claim in execution the value of improvements effected in the property after the date of the decree. For this position he relied on the Full Bench decision of the Travancore High Court reported in ''Parukutty Amma v. Achuthan'' 1948 TLR 209 (FB). "In view of the fact that, the decisions of the Travancore High Court on the point are not uniform and in view of the importance of the question involved" the Diviion Bench thought it necessary that the question should be considered by a Full Bench for an authoritative ruling. In C.M.A. 211 of 1950 the Respondent contended that the decree-holder cannot claim in execution damages for waste committed by the mortgagee after the date of the decree and that the decision in ''1948 Trav L R 209'' on this point is not correct. In ''1948 Trav L R 209'', the Travancore High Court has held that

Compensation for waste committed after the date of the decree would come within the scope of the words discharge or satisfaction and that to the extent to which there is diminution in value it should be taken to be a discharge or satisfaction of the decree in favour of the Defendant.

But in a decision of this Court reported in ''John Francis Carlose v. Lakshmikutty Amma'' 1950 CLR 260, the decision of the Travancore High Court reported in ''Venkita Rao v. Ramachandra Kammath'' 1945 Trav L R 972 which took a contrary view was followed. In view of the conflicting decisions on the point the Division Bench considered that the question whether in the case of a decree for redemption of a mortgage the decree-holder can claim in execution damages for waste committed by the mortgagee after the date of the decree should also be authoritatively decided by a Full Bench. Since the fate of the two appeals depended mainly on the answers to the above questions the appeals themselves were referred for decision to the Full Bench. It is in this way that these appeals have come before the Full Bench for decision.

It goes without saying that the claim of the assignee-decree-holder for damages for waste committed by the mortgagee after the decree as also the claim of Defendant 3 to the value of improvements effected after the decree will depend primarily on the preliminary question whether those matters could be agitated at all in execution. If they are foreign to the scope of the enquiry contemplated u/s 47, Code of Civil Procedure, then they have to be shut out on that preliminary ground and no enquiry on the merits of the claims can be allowed at all in execution. We have, therefore, to see whether the above two questions regarding improvements effected after the date of the decree and of waste committed by the mortgagee after the date of the decree can be gone into in execution.

I shall first take up for consideration C.M.A. 212 of 1950 in which the question whether a mortgagee is entitled to claim in execution the value of improvements that he has effected in the property after the date of the decree is raised. The decree in this case was passed on 19-12-1103. It is worth-while to keep in mind the state of the law regarding mortgage suits that was in force in Travancore at the time when the decree was passed. As stated by His Lordship Padmanabha Kukilliya C. J., in his leading judgment in the case reported in ''Parukutty Amma v. Achuthan'' 1948 Trav LR 209 (FB) at p. 214:

A redemption suit and redemption decree in this State differ from a redemption suit and redemption decree outside Travancore. This difference has led to certain anomalous results. There is no provision for foreclosure in the law as prevails in Travancore and when a mortgagor obtains a decree for redemption it is not open to the mortgagee Defendant to ask for foreclosure nor is it open to him to apply to execute the decree against the mortgagor for the amount declared payable by the decree to the mortgagee. The result is unless the mortgagee himself chooses to file a suit for the mortgage amount and the value of his improvements, he has to face the uncertain situation of the mortgagor some day depositing the mortgage amount and the value of improvements and calling for the surrender of the property, or failing to do the same altogether within the period of limitation allowed by law.

Again at page 216:

So far as this State is concerned as already pointed out there is ho provision for sale or foreclosure. And there is no express provision either for the passing of a preliminary decree and a final decree thereafter after taking accounts between the mortgagor and the mortgagee. There is thus no counterpart in our CPC to Order XXXIV, Rule 7 of the Indian Code of Civil Procedure.

The decree in this case is, therefore, final and could not be deemed to have left open any question to be worked out in execution.

It is a well-recognised principle which is beyond question that the execution Court must execute the decree as it stands and according to its terms. The Court executing the decree cannot add to or alter the terms of the decree. When the rights of the parties have been finally adjudicated under the decree, the causes of action that were put in suit have merged in the decree and it is the decree that governs the rights of the parties and the execution Court has merely to execute the decree as it stands. Section 47, Code of Civil Procedure, however, provides that:

All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

Therefore the precise point for consideration in this appeal is whether the claim by the mortgagee for value of improvements effected after the decree can be said to be one relating to the execution, discharge or satisfaction of the decree in the case. If it is so, then the claim has to be investigated and settled by the Court executing the decree. If, however, it is not a question relating to the execution, discharge or satisfaction of the decree'', then Defendant 3 cannot be permitted to agitate the matter in execution. As I have already stated the decree in this case has finally determined the rights of the parties put forward at the trial and has allowed the Plaintiff to recover possession of the plaint properties on payment of the mortgage-money and the value of improvements specified in the decree. The right to the value of improvements effected after the decree now put forward is an altogether new claim quite unconnected with the rights that have been settled under the decree. It is difficult to see how such a claim can in any sense be taken to be one relating to the execution, discharge, or satisfaction of the decree that was passed and is sought to be executed. It has been argued on the authority of the decision of the Federal Court reported in ''Subba Rao v. Matapalli Raju'' AIR 1950 FC 1 that it is open to the mortgagor to bring in a second action for redemption of the identical mortgage so long as the mortgage subsists and that, therefore, in such a suit, the mortgagee can claim value of improvements including that effected after the date of the present decree and that further it is equally open to the mortgagee to file a suit for the mortgage money and value of improvements, in which case also, he will be enuued to obtain the entire value of improvements effected till that tune, It is, therefore, argued that there is no justification in denying the mortgagee in the present execution proceedings what he would be entitled to in actions mentioned above. The question is not whether the mortgagee in possession of the property is entitled to effect improvements in spite of the decree and claim the value thereof in other actions. The question really is whether when a decree for redemption is put in execution the mortgagee can put forward in execution any claims to value of improvements other than those that were awarded under the decree.

The learned advocate for the Respondent relied on the decisions in ''Raman v. Damodaran Namburi'' 21 CLR 64 and ''Raman v. Damodaran Namburi'' 22 CLR 159 in support of his position. But it has to be noted that in the Cochin Tenancy Act XV of 1113, there is a specific provision in Section 5, Clause (3) that:

The amount of compensation for improvements made subsequent to the date up to which compensation for improvement, was adjudged in the decree and the revaluation of an improvement, for which compensation was so adjudged, when and in so far as such re-valuation 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, michavaram or otherwise in respect u� the tenancy shall be determined by order of the Court executing the decree and the decree shall be varied in accordance with such order.

Sub-clause (4) of that section further provides that:

Every matter arising under Sub-section (3) shall be deemed to be a question relating to the execution of a decree within the meaning of Sub-section (1) of Section 41 Cochin CPC (Act XXIX of 1111).

The above statutory provisions clearly empower the Court to vary the decree and to treat questions regarding value of improvements after decree and other matters referred to therein as questions relating to execution of a decree within the meaning of Sub-section (1) of Section 41, Cochin Code of Civil Procedure, corresponding to Sub-section (1) of Section 47, Indian Code of Civil Procedure. There were similar provisions in the earlier Cochin Tenancy Act also (Act II of 1090) that was repealed under Act XV of 1113. It may also be stated that there is a similar provision in Section 6, Malabar Compensation for Tenants Improvements Act (Act I of 1900). The decisions of the Cochin High Court and those of the Madras High Court under the Malabar Tenancy Act wherein the question of value of improvements after the decree had been gone into in execution will, therefore, be of no help to us in the decision of the present case.

Our attention has been drawn to the decision of the Travancore High Court reported in ''Varki Avira Tharakan v. Raman Nilacantan'' 28 Trav L R 129, which is also a Full Bench decision and to the subsequent decisions of the Travancore High Court reported in ''Kunien Raman v. Kochukunju Raman'' 8 Trav L J 299; ''Vasudevan Vasudevan Namboori v. Ivpe Ivne'' 30 Trav L R 245; - ''Aypu v. Padmanabhan Nair'' 21 Trav L J 1366 and - ''Punnan v. Aiyappan'' 26 Trav L J 657 which, followed the Full Bench decision in ''28 Trav L R 129''. As regards improvements effected after the decree the learned Judges who decided the case in ''28 Trav L R 129'' took the view that it is unjust to deny the Defendants'' compensation for improvements effected by them after the date of the decree, because according to them it would be unreasonable to say that the Defendants ought not to have made any improvements after the date of the decree. It appears to me that such considerations of equity are foreign to the determination of the question in hand. So far as the Court executing the decree is concerned it has only, to see whether the execution sought for is in terms of the decree in the case and whether the questions agitated in execution are those relating to'' the execution, discharge or satisfaction of the decree.

In considering the correctness of the decision in ''Varki Avira Tharakan v. Raman Nilakantan'' 28 Trav L R 129, His Lordship Padmanabha Kukilliya'' C.J. in ''Parukutty Amma v. Achuthan'' 1948 Trav L R 209 (FB) at p. 224 observes as follows:

In considering, however, whether the Full Bench decision lays down the correct law it becomes necessary to consider what exactly a decree is and what is the scope of Section 238 of the old Code of Civil Procedure. According to the definition the word ''decree'' means the formal expression of an adjudication upon any right claimed or defence set up in a civil Court when such adjudication so far as regards the Court expressing it decides the suit or appeal. Clearly thus a decree can only relate to an adjudication of a claim, an adjudication of a right already set up or a defence already raised. It does not go beyond, and a right or a claim or a defence which was not available to the party when he joined issues cannot strictly speaking come within the scope of the enquiry resulting in a decree. The definition of a decree therefore does not comtemplate things that arose as between the parties subsequent to its being passed. So far as the proceedings in the suit are concerned, the decree terminates them except in cases where any particular matter is by the decree itself provided for as being determinable in execution. A direction to determine anything in execution is really a part of the decree, and the direction is carried out as required by the decree itself; and therefore if such a direction is complied with, any proceedings in execution can be considered only as forming part of the enforcement of the decree.

We may next turn to Section 238, Code of Civil Procedure. According to that section the question to be determined by order of the Court executing the decree and not by separate suit are (a) questions regarding the amount of mesne profits or interest which the decree has made payable in respect of the subject-matter of a suit between the date of the institution and the execution of the decree or the expiration of three years from the date of the decree, (b) any other questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree or to the stay of execution thereof. A claim for re-valuation because of increase in value due to any circumstance and the valuation and awarding of compensation for improvements after decree do not certainly come under Clause (a) of Section 238. As regards Clause (b) the question must relate to execution, discharge or satisfaction of the decree. The claim for additional value does not relate to the execution of the decree merely because the Defendant says he has been improving the property after the decree. This difficulty was realised in ''Varkey Avira Tharakan v. Raman Neelacantan'' 28 Trav L R 129, and that is why their Lordships say a liberal interpretation should be given to the understanding of Section 238. What is a liberal, interpretation? It should not be an interpretation which is really not an interpretation but a grafting into the section of what is not there.

I am in entire agreement with the above view. If the decree directs redemption of the property on payment of a specific sum by way of value of improvements that gives the right to the decree-holder to execute the decree as it stands and recover possession of the property on payment of the amounts directed under the decree. The question of improvements after decree, being an altogether new and independent claim, is not one relating to the execution, discharge or satisfaction of the particular decree put in execution and is, therefore, beyond the scope of the enquiry contemplated u/s 47, Code of Civil Procedure. Further, it is also a claim quite inconsistent with the terms of the decree. To justify the consideration of such a question by the Court executing the decree the Court has to read into the decree something more than what it really awarded. The decree has to be read as following not only the value of improvements adjudicated upon and directed to be paid under the decree but also as allowing the value of improvements that may be effected after the date of the decree. In other words, the decree has to be read by adding some more words to it. This is exactly what the law prohibits when it states that the execution Court has to execute the decree as it stands. I am, therefore, clearly of the view that the mortgagee cannot claim in execution value of improvements effected by him after the date of the decree. 1 think the decision in ''1948 Trav L R 209 (FB)'' lays down the correct law on the point.

In this case, what Defendant 3 claims is the value of 36 tender cocoanut plants which he says, he has planted in the property after the date of the decree. He put forward this claim in his objection dated 10-12-20. But he did not care to pursue it. However, when he found that the property was about to be delivered over he nut in an application for the issue of a commission nearly four years after his objection petition. Obviously his purpose was to delay the delivery of the properties still further. I entirely agree with the learned Munsiff in his view that 3rd Defendant''s application for the issue of a commission at a very late stage in the case is lacking in good faith. But, this apart, he has no right to claim in execution any value of improvements effected by him after the date of the decree. The claim has, therefore, been rightly repelled by the learned Munsiff.

Now, let us turn to C.M A. 211 of 1950. The first question to be considered here is whether the decree-holder can in execution claim damages for waste committed by the mortgagee after the date of the decree. The answer to this question will depend upon our decision on the further question whether the claim for compensation for waste in the property committed after the date of the decree is a matter relating to the execution, discharge or satisfaction of the decree within the meaning of those words in Section 47, Code of Civil Procedure. The decree in the case allows the Plaintiff to recover possession of the plaint property on payment of the mortgage-money and the value of improvements. When the decree awards recovery of possession of the property, it means that the decree-holder is entitled to get the property in the state in which it was when the decree was passed. The question, therefore, whether when the property was to be delivered over, it continued to be in the same state or has under-went deterioration is undoubtedly one relating to the execution of the decree. The claim of the decree-holder for compensation for such deterioration on account of active waste committed by the Defendant is, therefore, one relating to the execution, discharge or satisfaction of the decree and has to be gone into by the Court executing the decree u/s 47, Code of Civil Procedure. This very point arose for decision before the Bombay High Court in ''Hari Sridhar Prabhu Desai v. Sakharam Padmanna'' 25 Bom LR 449 in which Macleod C.J., observed:

But we think that the question with regard to the waste committed by the judgment- debtor after decree was a question arising between the parties relating to the execution, discharge or satisfaction of the decree, and must be determined by the court executing the decree, and not by a separate suit. The Appellant is entitled under the decree to the property of which possession was directed to be given to him. If the property has depreciated in value or been damaged since the decree, owing to the wilful action of the Defendants, it is a question in execution whether the Defendants are liable to make good the loss.

This decision was followed by the same court in ''Lalbu Bai v. Mohanlal Goltaldas'' 27 Bom L R 687 and subsequent cases. The above dictum in ''25 Bom L R 449'' was quoted with approval and followed by the Madras High Court in the case reported in - ''Dhanarajagerji v. Parthasarathy Rayanim Varu'' 57 Mad 49. On almost the same lines of reasoning the learned Judges who decided the case in - ''Parukutty Amma v. Achuthan'' 1948 Trav L R 209 (FB) stated at page 233:

It appears to be clear that in execution the party entitled to obtain possession of the property is fully within his right to say that he must be placed in possession of the property in the manner in which it was directed to be placed by the decree. Any deterioration caused by the wilful negligence or wilful act of the Defendant is something that detracts from the decree and, therefore, compensation on that account should be provided for, and such compensation would come within the scope of the word ''discharge'' or ''satisfaction''. To the extent to which there is 8 diminution in value it should be taken to be a discharge or satisfaction of the decree as loss has to be adjusted against what is payable under the decree to the Defendant. It would be a case of restitution in execution.

I think the above decisions contain a correct'' statement of the law. I am therefore of the view that the question of damage for waste committed by the mortgagee after the date of the decree is one that has to be determined u/s 41, CPC by the Court executing the decree. The decision in ''John Francis Curlose v. Lakshmikutty Amma'' 1950 Trav C L R 260 to the extent to which it is counter to this view is not correct and is accordingly overruled.

The execution Court awarded compensation for waste to the extent of Rs. 65 Chs. 3 Cash 4. That Court does not, of course, state the reason that necessitated the modification of the amount stated in the Commissioner''s report. For this reason, and also for the reason that there is no finding as to the nature of the waste, the learned Judge thinks that the disposal of the matter by the learned Munsiff was not proper. This induced the learned Judge to set aside the order of the learned Munsiff and send back the case to him for proper disposal. But the parties had adduced all the evidence that they wanted to let in in respect of the question in controversy. The case itself is a very old one and the execution application was pending disposal for nearly 7 years at the time of the order of the learned Judge. In these circumstances, the learned Judge ought to have himself determined the questions on the evidence on record instead of remanding the case.

It follows that the Appellant is entitled to succeed in both the appeals. Accordingly both the appeals are allowed with costs and the order of remand passed by the learned Judge is set aside and the lower appellate Court is directed to readmit the two appeals A.S. 297 of 1124 and A.S. 338/1124 to its file and dispose of them in accordance with law and in the light of the foregoing observations.

Since I have had the advantage of perusing the judgment proposed by my learned brother Subramania Iyer J., I must add that the two main questions which I have dealt with above do undoubtedly arise for consideration in these appeals and that it was for that reason that the appeals were referred to the Full Bench after formulating the questions involved in clear; and unambiguous terms for authoritative decision. As I have already stated in para 23 above, if the questions cannot be agitated at all in execution on account of the fact that they are foreign to the scope of the enquiry contemplated in Section 47, Code of Civil Procedure, then they have to be shut out on that preliminary ground alone without going into the merits of the claims. It will indeed be idle arid waste of judicial time if the execution Court is called upon to enquire into the merits of claims which that Court has no jurisdiction to entertain. It is precisely this question of the jurisdiction of the execution Court to go into the claim put forward by the decree-holder as well as that by Defendant 3 that is agitated in these appeals and I fail to understand how it could legitimately be said that it is unnecessary or even premature for us to consider it here in these appeals. There is no question of the decisions being ''academic'' or opinion one being ''obiter dicta'' if they are on matters that really arise for decision in the case. As stated already, I am unhesitatingly of the view that the questions that are raised in the Order of Reference and have been argued at considerable length at the bar and which I have considered above do clearly arise for decision in these appeals. The questions may be nice, delicate, complicated and even highly controversial but it is not right to shelve them when they arise for decision in the cases before the Court. When the order of remand passed by the District Judge is confirmed, it clearly means that the District Judge''s decision that the execution Court has jurisdiction to go into the questions agitated in the appeals before him is also confirmed as correct. Therefore, the judgment proposed by my learned brother Subramania Iyer J. clearly indicates that he is of the view that the execution Court has jurisdiction to go into the consideration of the claims set up both by the assignee-decree-holder and by Defendant 3. I regret I have to differ from him to the extent, to which his opinions expressed directly and by necessary implications in his judgment are against the conclusions that I have arrived at.

Sankaran, J.

I am in complete agreement with the order proposed by my learned brother Gangadhara Menon, J., and also with the answers given by him to the two specific questions raised in the Order of Reference to the Full Bench. The competency of the Court executing the decree for recovery of possession of the property involved in a redemption decree, to entertain the Defendant''s claim for compensation for improvements effected in the property subsequent to the date of the decree as well as the decree-holder''s claim for damages on account, of waste committed in the property after the date of the decree, has to be determined with reference to the jurisdiction conferred on the execution Court by Section 47, Code of Civil Procedure. So far as the execution of such decrees relating to properties situated within the former State of Cochin is concerned, this question does not really arise for consideration in view of the special enabling provision contained in Section 5, Tenancy Act (Act 15 of 1113). By Clause (3) of Section 5 of that Act, the Court executing the decree has been empowered to entertain the claim of compensation for improvements made subsequent to the date up to which compensation for improvements has been adjudged in the decree, and to determine the amount of such compensation and to award the same also in favour of the Defendant by varying the decree to that extent. So long as such a special statutory provision remains in force, it will govern the execution of decrees coming under it. Since there is no such statute conferring any special jurisdiction on the Courts executing decrees relating to the properties situated in the former State of Travancore, the execution of such decrees has to be strictly in accordance with the relevant provisions of the Code of Civil Procedure. In some of the decisions of the erstwhile Travancore High Court, these provisions were liberally construed and it was held that claims on account of waste committed and on account of improvements effected subsequent to the date of the decree could be entertained by the Court executing the decree, while some other decisions took a contrary view. All these decisions were exhaustively reviewed by a Full Bench of the same Court in ''Parukutty Amma v. Achuthan'' 1948 Trav L R 209 and it was ruled that the execution Court is not empowered to award compensation for improvements made after the ultimate decree in the case while the question of waste committed in the property after decree could be gone into by the execution Court as matter relating to the execution, discharge and satisfaction of the decree. When the present appeals came up for hearing before the Full Bench, the correctness at the decisions in the above case was challenged on behalf of the Respondents.

''Varki Avira Tnarakan v. Raman Nilakantan'' 28 Trav L R 129 is the leading case in support of the view that the claim ox compensation for improvements effected after decree can be entertained in execution, it is a Full Bench decision and it was followed in a series of later decisions of the same Court. The grounds stated in support of those decisions are the following. The relationship of mortgagor and mortgagee subsists even alter the decree for redemption. Until actual redemption the mortgagee who has acquired an interest in the property is entitled to continue improving the property and it will be unjust and inequitable to permit the decree-holder to get the benefit of ail such improvements also without payment of any compensation to the mortgagee. The decree-holder may delay the enforcement of his decree for recovery of possession and it twill be to the prejudice of the mortgagee-Defendant to abstain from effecting improvements on the property during such interval. To me it appears that such equitable and sentimental considerations have no place in the discharge of the duties by the Court called upon to execute the decree. The decree has settled and defined the rights and liabilities of the parties to it in respect of the subject-matter of the suit. The duty of the execution Court is to take the decree as it stands and to enforce it without being influenced by equitable and sentimental considerations. There is no reason why this wholesome rule should be allowed to be ignored or departed from in the matter of execution of redemption decrees. Sentimental feelings and notions of equity will vary from individual to individual and as such it will be dangerous and may lead to an uncertainty in respect of claims under decrees of courts if the Judges permit themselves to be influenced by such feelings in transgressing the limits of the jurisdiction defined by Section 47, Code of Civil Procedure, in the matter of execution of decrees, and thereby upsetting rights and liabilities already settled. The question whether a mortgagee-Defendant, whose rights and liabilities have thus been settled and defined, under the decree, deserves further protection or help is a question of public policy for the consideration of the legislature and not of the Court. The learned Judges who took part in the Full Bench decision in ''Varki Avira Tharakan v. Raman Nilakantan'' 28 Trav L R 129 were conscious of these aspects of the question, and that appears to be the reason which induced them to hold that by liberally construing Section 238, CPC which was then in force (corresponding to the present Section 47) the claim for improvements made after decree can be entertained in execution.

However liberally one may construe Section 47 CPC there can be no doubt that the jurisdiction of the execution Court has to be confined to the consideration of the questions expressly permitted by the section itself. The section says that

all questions arising between the parties to the suit in which the decree was passed, or their representatives, and ''relating to the execution, discharge or satisfaction of the decree'', or to the stay of execution thereof, shall be determined by the Court executing the decree, and not by a separate suit.

The decree referred to is undoubtedly the decree that is sought to be executed. Such a decree in a redemption suit where the mortgagee Defendant had claimed payment of the full redemption price inclusive of compensation for all his improvements in the mortgaged property, is passed alter an adjudication of ail his claims. The decree directs the payment to the mortgagee-Defendant it of the full amount of the redemption price as fixed by the decree as a condition precedent to the recovery of possession of the property by the decree-holder. When the decree-holder deposits the amount in court and seeks recovery of possession of the property can the Defendant resist delivery and contend that he must be paid something more towards compensation for his improvements in the property before he is evicted. Can the execution Court entertain any such claim as a question relating to the execution, discharge or satisfaction of the decree sought to be executed? The answer can only be in the negative. The inevitable result of entertaining a claim of compensation for improvements made after decree will be to enhance the redemption price already fixed by the decree. Such an enhancement of the amount payable by the decree-holder to the Defendant in the case cannot certainly be a question relating to the discharge or satisfaction of the decree. It cannot also be a question relating to the execution of the decree. On the other hand, it is a question of passing a fresh decree after revising arid modifying the decree sought to be executed.

The function of the execution Court is to accept the decree as it stands and to enforce it. The execution Court has no power to revise or modify the decree or to substitute a decree of its own in place of the decree which the decree-holder seeks to execute. On a proper execution petition being presented by the decree-holder the Court is bound to execute the decree as it stands except in cases where it is found that the decree is void and destitute of all legal effect or that the decree has become barred by the law of limitation. The execution Court will be acting in excess of its jurisdiction if it entertains a claim by the Defendant for additional amount of, compensation on account of improvements effected after decree. To entertain such a claim would be a virtual denial of the decree-holder''s right to have the decree enforced. The Court will also cease to function as an execution Court and will be usurping the function of the trial Court in the matter of adjudicating upon claims of compensation for improvements. By the time one such claim is adjudicated upon, Anr. claim may be forthcoming in respect of still later improvements and the process may go on for any length of time so much so the execution Court may not get any opportunity to perform its normal and legitimate duty of executing the decree. If only the execution Court would confine its activities to the discharge of its normal and legitimate duties in the matter of executing the decree as it stands, the litigation would reach its natural termination within a reasonable time. If the parties to a decree have acquired fresh rights and have incurred fresh liabilities subsequent to the date of the decree they will have to work out such rights and liabilities by resorting, to fresh and independent proceedings.

The legislature in the former state of Cochin as well as the Madras Legislature desired these matters also to be settled during the course of the execution of the decree already in existence. At the same time they felt convinced that the execution Court''s powers under the CPC would not enable such a Court to grant any relief to the parties by varying and modifying the terms of the decree. Accordingly special statutory powers in that direction were conferred on the execution Court, as per Clause (3) of Section 5, Cochin Tenancy Act (Act 15 of 1113) and as per Clause (3) of Section 6, Madras Compensation for Tenants Improvements Act (Act 1 of 1900). These provisions specially empower the execution Court to entertain claims for compensation for improvements made even after the decree and award the amount of such additional compensation also and thus to vary the decree sought to be executed. Thus, so far as these redemption, decrees are concerned, the Court executing the decree is allowed to function as a trial Court as well for the limited purpose already mentioned. Whether right or wrong, desirable or undesirable, the power is there as conferred by the special statute, and the execution Court has to exercise it and to grant the relief contemplated. It is only a matter of procedure. In Clause (4) of the section mentioned above, it is stated that every matter arising under Clause (3) shall be deemed to be a question relating to the execution of the decree. To say the question of passing an order under Clause (3) varying the terms of the decree must be deemed to be a question relating to the execution of the decree appears to be a contradiction in terms. Even wit .out recourse to such a fiction the end desired can be achieved by exercising the special power conferred on the execution Court by Clause (3) of the section, to vary the decree and then to enforce the decree as varied. But this can be done only in the case of decrees coming under these special statutes. In other cases the execution Court cannot, in any manner, interfere with the decree, but can only execute the decree as it stands and can entertain and determine only the question relating to the execution, discharge or satisfaction of the decree, as contemplated by Section 47, Code of Civil Procedure.

The question of compensation for waste committed by the mortgagee-Defendant subsequent to the date of the decree, stands on an entirely different footing. It is not any fresh claim which the execution Court is called upon to entertain in and adjudicate upon. The claim is one which directly arises under the decree sought to be executed. The decree has created reciprocal obligations on both parties. The decree-holder has to pay the redemption price as fixed by the decree, to the mortgagee-Defendant who is to surrender possession of the property in the condition in which it stood at the time of the decree, i.e., the property together with all the items of improvements for which compensation has been awarded under the decree. The disappearance of any of these items on account of the waste committed by the Defendant, means that he is not in a position to hand over possession of the property in the same condition as contemplated by the decree. The decree-holder is entitled to have a reduction in the amount adjudged to be paid to the Defendant to the extent of the damages caused to the property as a result of the waste committed by the Defendant and the consequent disappearance of some items of improvements taken into account while passing the decree. This is really not a case of awarding any compensation for such waste, but is only an adjustment and satisfaction of the cross-claims under the decree, it is undoubtedly a question relating to the execution, discharge and satisfaction of the decree, and as such it is perfectly within the competence of the execution Court to entertain and decide that question u/s 47, Code of Civil Procedure. In fact it is a question which has to be determined by the Court executing the decree, and. cannot be left to be determined in a fresh suit.

The Full Bench decision in ''Parukutty Amma v. Achuthan'' 1948 Trav L R 209 on both the questions dealt with above, is correct and that decision is accordingly affirmed. The view taken in ''John Francis Carlose v. Lakshmikutty Amma'' 1950 Trav CLR 260 that the question of waste committed by the mortgagee-Defendant subsequent to the date of the decree, cannot be determined by the court executing the decree, is incorrect and unsupportable. To that extent the decision in that case is overruled.

In view of the answers given above to the two questions of law pointedly referred to the Full Bench, there is no necessity at all to remand the case to the execution Court for conducting any enquiry as to the nature and extent of the improvements stated to have been effected after the date of the decree. Since the claim on that account cannot be entertained by the execution Court, any enquiry in that direction will be a sheer waste of the time of the Court and an unjustifiable delay in the termination of the proceedings in execution. For determining the question of waste, the required evidence has already been recorded and the lower appellate Court has only to consider such evidence and to decide whether the finding of the execution Court requires modification and. if so, to what extent. Thus I am unable to agree with the view of my learned brother Subramania Iyer, J., that the District Judge''s remand order has to be upheld. The effect of confirming that order is to hold that the execution Court is competent to entertain the claims on account of improvements effected and waste committed after decree. The reasons which have weighed with my learned brother in coming to such a conclusion are fully set forth in his judgment which I had the privilege to read. I could not persuade myself to be convinced of the acceptability of those reasons. I do not also share my learned Brother''s view that in these appeals it is not necessary to give a decision on the questions raised in the Order of Reference and that any decision given may be relegated to the category of ''obiter dicta''. When specific questions of law are referred to a Full Bench for decision, the Full Bench is bound to give its verdict on those questions, irrespective of any consideration as to whether the questions are separately and independently referred or ''whether the questions are referred along with the case which gave rise to the Order of Reference. Where the case is also referred, the Full Bench will have to decide the case in the light of the answers to the questions referred and on a consideration of the evidence on record. Even if the questions of law referred to the Full Bench for decision do not strictly arise from the facts of the case, the decision of the Full Bench on those questions can never be relegated to the position of ''obiter dicta''. On the other hand, the decision will have to be accepted as the authoritative ruling of the Full Bench on the questions which it was expressly called upon to decide. The Full Bench will be failing in its duty if it refuses or declines to exercise the jurisdiction conferred on it in respect of that matter by the relevant statutes.