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Judgment
Srinivasan, J.—This appeal arises out of an application for passing of a final decree in a suit for redemption of a mortgage. The preliminary
decree was passed on 18th August, 1972 and the appeal by the defendants against that was dismissed on 10th April, 1976. There was a second
appeal, namely, Neelakanta Pillai v. Sankaranarayana Thampi S.A. 1313 of 1976 , which was dismissed on 30th August, 1979. During the
pendency of the appeal and the second appeal, the defendants had obtained stay of further proceedings. After the disposal of the second appeal,
the application for passing of final decree has been filed by the plaintiff on 4th September, 1980. This application was resisted by the defendants on
the ground that there was no provision in the preliminary decree fixing a time limit for deposit of the amount for redemption and therefore the
application for final decree was not maintainable. The second ground raised was that the application for final decree was barred by limitation and
the third grounds was that the defendants had made valuable improvements to the property and they were entitled to claim the said value as per the
provisions under S. 5 of the Travancore Cochin Compensation for Tenants Improvements Act, 1956 (Act No. 10 of 1956). Both the courts
below have negatived the contentions of the defendants and granted the application filed by the plaintiff. This second appeal was preferred by
defendants against that decree.
In this second appeal, learned counsel for the appellants presses into service two of the contentions urged before the Courts below. Learned
counsel contends that the application for final decree is not maintainable in view of the fact that the preliminary decree is not in accordance with the
terms of O.34, C.P.C. Reliance is placed upon the decision of Ismail, J. as he then was, in Sivan Pillai v. Anbayyan end others 89 L.W. 449 =
ILR 1976 Mad. 164 (1). In that case, the question arose whether an application for final decree was barred by limitation, when the preliminary
decree did not fix the time for payment of amount into court. His Lordship after pointing out that it was the duty of the Court to fix the time when
the preliminary decree was passed, held that the application was not barred by limitation, as it was open to the mortgagee to apply for amendment
of the decree. The passages relied upon by the learned counsel in this behalf run as follows:-
I may also point out certain general consideration which also favour the view I have taken in favour of the appellant. I had said enough already to
show that under the rules of O. XXXIV rule 1 the Court is bound to fix a date within the outer limit of six months for the mortgagor to pay the
amount in question. If the Court fails to discharge its duty, the general principle is that no litigant should suffer as a consequence of the failure of the
court of the mistake committed by the court. Secondly it would have certainly been open to the appellant herein to apply for amendment of the
decree to the trial court so that the decree could be made in conformity with the requirements of O. XXXIV as well as Form 5-A already referred
to. It is conceded that for applying for amendment of the decree, there is no period of limitation whatever. Therefore, if the appellant had first
applied for an amendment of the decree and had got the decree amended and thereafter, no default committed by the respondents herein to pay
the amount within the date fixed by the amended decree, made the application for passing the final decree, it could not be said that the present
application filed by the appellant herein was barred by limitation. These considerations also will support the view taken by the Allahabad High
Court already referred to and therefore, looked at from any point of view, the application filed by the appellant herein passing a final decree for the
sale of the property cannot be said to be barred by limitation.
In my view, the said decision cannot apply to the facts of the present case. Even in that case, His Lordship after pointing out the defect in the
preliminary decree held that the application for passing of final decree was not barred and consequently granted the relief to the applicant. In the
present case, the preliminary decree did not prescribe any time for deposit of the amount into court. But that would not make the final decree
application unsustainable. The only contention that can be open to the defendants will be that the application for final decree is barred by limitation.
But that is not available to the defendant in this case, because the second appeal was disposed of only on 30th August, 1979 and there was stay of
further proceedings till that date.
Next contention urged is that the benefits of S. 5 of the Travancore Cochin Compensation for Tenants Improvements Act 1956 (No. 10 of
1956) should be given to the defendants. S. 5 of the said Act runs as follows:--
Decree in eviction to be conditional on payment of compensation.-- I. In a suit for eviction instituted against a tenant in which the plaintiff
succeeds and the defendant establishes a claim for compensation due under S. 4 for improvements, the court shall ascertain as provided in Ss. 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.
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.
The amount of compensation for improvements made subsequent to the date upto 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.
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 Civil Procedure Code, 1908.
On a reading of the section, it is quite clear that the entitlement of the defendants for compensation should be decided in the suit itself and before
the passing of the decree. If the defendants are held to be entitled to compensation, a provision should be made therefor in the decree passed in
the suit. In this case, the defendants have not made a claim for compensation in the written statement or at any stage during the pendency of the suit
or the appeal therefrom. The preliminary decree, which has been passed by the trial court, directs the plaintiff to deposit a sum of Rs. 633.35 only.
The defendants will not be entitled to claim any amount in addition thereto without getting the decree amended by means known to law. So long as
the decree stands as it is, the final decree application is maintainable and the defendants are not entitled to claim value of improvements at this
stage. Consequently, the decision of the Courts below is correct and does not warrant any interference. The second appeal fails and it is
accordingly dismissed. But, there will be no order as to costs.