The main legal point established in the judgment is that the entitlement of the petitioner to claim the value of improvements and kudikidappu right was established in the preliminary decree and supported by relevant legal provisions, allowing her to pursue these claims in the execution proceedings.

K.A. Mohamed Shafi, J.

1. A final decree for redemption of the ottikuzhikanan under Ext. A1 dated 15.6.1960 and for recovery of possession of the property is passed by the lower court in OS No. 149/90. When the decree holder filed EP 415/93 for execution of the decree, the 1st judgment debtor filed EA No. 994/93 to appoint a commissioner to value the improvements in the property and claiming kudikidappu right in the property. The lower court dismissed the application by order dated 28.5.1994. That order is challenged in this revision petition.

2. The petitioner has contended that in the preliminary decree for redemption passed in the above suit on 29.7.1991 there was a direction to value the improvements in the plaint schedule property by a commissioner to be appointed in the final decree proceedings and even though she filed a petition for issue of a commission, in the final decree proceedings, she could not deposit the batta for the commission due to financial stringency and the lower court dismissed that application and subsequently passed final decree in the suit. According to her, as there is finding in the preliminary decree that she is entitled to value of improvements, the above petition for issue of a commission filed in the execution proceedings is perfectly valid, since she is entitled to continue in possession until the value of improvements is determined and paid to her under the provisions of the Compensation for Tenants Improvements Act, 1958.

3. But the contention of the respondents is that even though an opportunity to take out a commission to value the improvements during the final decree proceedings was provided in the preliminary decree the petitioner did not avail that opportunity since after filing the petition to issue a commission she failed to take out commission to value the improvements in the final decree proceedings as she did not deposit the commission batta and she cannot claim for the issue of a commission in the execution proceedings as there is no such direction in the final decree proceedings and the execution court cannot go behind the decree.

4. In this case it is clear that the preliminary decree provided for the assessment of the value of improvements by a commission to be appointed in the final decree proceedings and in the final decree proceedings even though the revision petitioner applied for the issue of a commission, that petition was dismissed for non-payment of the commission batta due to her inability to raise the amount, according to the revision petitioner, and final decree was passed without awarding value of improvements. S.4 and 5 of the Compensation for Tenants Improvements Act, 1958 provides for payment of compensation to the tenant for the improvements which were made by him or his predecessor in interest and the tenant is entitled to be in possession till the mortgage amount along with the value of improvements is paid to him. Therefore, the contention that since the revision petitioner failed to deposit the batta for issue of a commission in the final decree proceedings as directed in the preliminary decree, she is not entitled to claim the value of improvements, is not sustainable since there is definite finding in the preliminary decree itself that she is entitled to value of improvements.

5. It is also pertinent to note that a reassessment of the value of improvements even after the value of improvements was estimated by issuing a commission in the suit for redemption is permissible in appropriate cases where re-assessment is necessary. It has been held so in the decision in Kalyani Amma v. Varghese (1989 (2) KLT 408). Therefore, the dismissal of the application for the issue of a commission to estimate the value of improvements claimed by the petitioner in this case is not sustainable.

6. The further question to be considered is whether the revision petitioner is entitled to claim kudikidappu right in the plaint schedule property.

7. The respondents have vehemently co