The 6th judgment debtor in E.P.No.26 of 2004 in O.S.No.99 of 1976 on the file of the subordinate Judge’s Court, Nedumangad is the petitioner in W.P.(C) No.18707/2004. This Writ petition is filed challenging an order of delivery of decree schedule property passed by the executing court without notice too the judgment debtor.

2. W.P.(C)No.19507 of 2004 is filed by one of the decree holders challenging the order of redelivery of the suit property passed by the very same court.

3. The Respondents 1 to 26 and four other together filed O.S.No.99 of 1976 for redemption of a mortgage and recovery of the suit property. A decree allowing redemption was passed on 8-9-1978. Iin S.A. No.250 of 1984 this court by judgment dated 22.3.1991 modified the decree passed by the trial court as a preliminary decree. Subsequently a final decree was passed on 31.5.2003.

4. The decree holders filed e.P.No.26 of 2004 for delivery of the decree schedule property. The prayer No.2 in the execution petition was to issue notice to the judgment debtors and thereafter effect delivery through court. The above prayer reads as follows:

Even though the prayer in the execution petition was to effect delivery with due notice to the judgment debtors, the learned sub Judge did not order notice as prayed for but straightaway issued process too effect delivery of the property and posted the execution petition for delivery. The 6th judgment debtor has filed this Writ Petition challenging that order.

5. The Writ Petition was filed on 24.6.2004 and on that day itself this Court adjourned the delivery for a period of one month. But the delivery was effected on 24.6.2004. According to the decree holders delivery was effected before the receipt of a copy of the stay order of this Court. This is disputed by the judgment debtor. It was contended that actual delivery was not effected but records were fabricated by the Amein to make it appear that delivery was effected before the 12.00 noon on 24.6.2004. It is not necessary to consider that contention in this writ petition because of the subsequent events. The judgment debtors filed E.A.No.123 of 2004 for redelivery. The executing court allowed that application and ordered redelivery and the property was redelivered to the judgment debtors and now they are in possession of the decree schedule property.

6. The only reason stated by the learned sub Judge for ordering delivery without issuing notice to the judgment debtors is that no rule 22 notice was necessary in the execution petition a the same was filed within two years from the date of decree. The learned Sub Judge failed to note that the execution petition was filed to execute a redemption decree and one of the prayers in the execution petition was to execute the decree after issuing notice to the judgment debtors. The relevant portion of the final decree passed by this court reads as follows:

“5. Respondents are entitled to receive the subsequent value of improvements which can be considered at the execution stage.

6. The petitioners are also entitled to get damages if any and which can also be considered at the execution stage.”

The petitioners are entitled to get compensation for improvements made subsequent to the date upto which compensation for improvements has been adjudged in the decree as provided under section 5(3) of the Kerala Compensation for Tenants’ Improvements Act. If the judgment debtors are entitled to revaluation under Section 5(3) of the Compensation for Tenants’ Improvements Act, it is the duty of the executing court to determine the quantum. In such cases the tenant is entitled to be in possession until he is paid not only the compensation found due under the decree, but also the compensation reassessed under the decree, but also the compensation reassessed under Section 5(3) of the Act as held in Mathai v. Narayana Pillai (1960 KLT 1192).

7. The learned counsel appearing for the decree holders has argued that there is no provision in the Code of