Ascertainment of the value of improvements.

Srinivasan, J.

1. Defendants 1 and 3 to 7 are the appellants in this second appeal. The suit out of which this appeal arises was one for redemption of a mortgage. A preliminary decree was passed on 13.10.1970. According to the preliminary decree, the plaintiff was to deposit a sum of Rs. 96.25 as mortgage money. Alleging that by virtue of the provisions of Tamil Nadu Act IV of 1938 the mortgage money got scaled down to zero, the plaintiff filed I.A.No. 1142 of 1980 for passing of final decree. In that application, the plaintiff stated as follows:

4. The preliminary decree directs the plaintiffs to deposit Rs. 96-25 as mortgage money. No money need be deposited now because the entire mortgage money stands scaled down to zero under Act IV of 1938. I am filing another petition to amend the preliminary decree in this behalf.

5. The question of value of improvements has been, relegated to the final decree. If the defendants take out a commission and get the value of improvements assessed and adjudged, I shall pay such amount as is adjudged payable.

2. During the pendency of the application, the plaintiff sold her interest to one Madhavan Nadar, who got impleaded as the second petitioner in the said application.

3. As there was no dispute with regard to the entitlement of the defendants to the value of the improvements made by them, a Commissioner was appointed by the trial Court to ascertain the value of the improvements. The Commissioner submitted a report in which he valued the buildings at Rs. 3460-11 and the trees at Rs. 2,498-59. The trail Court accepted the report and fixed the total value of improvements at Rs. 5,958-70 p. The plaintiff was directed to deposit the said amount. The mortgagees/defendants were not satisfied with the amount awarded by the trial Court. When the appeal was heard by the learned Subordinate Judge, he set aside the report of the Commissioner on 6.7.1983 and appointed another Commissioner to assess the value of improvements. The Commissioner appointed by the appellate Court submitted his report, marked as Ex. C2, with a plan attached thereto, marked as Ex. C3. The second Commissioner valued the buildings at Rs. 6584-59 and the trees at Rs. 3537-20P. The plaintiff and the purchaser from her filed objection to the Commissioner's report. The main objection raised was that the Commissioner was related to the mortgagees and that they came to know of the same only when the Commissioner visited the suit property. The plaintiff had also raised certain objections regarding the valuation made by the Commissioner.

4. The learned Subordinate Judge rejected the contention that the second Commissioner was related to the mortgagees and that his report was vitiated on that account. The learned Subordinate Judge also rejected the other objection regarding the valuation of the trees and held that the value fixed by him with reference to the buildings could be taken to be the correct value. Consequently, the learned Subordinate Judge adopted the value of the buildings fixed by the first Commissioner and the value of the trees fixed by the second Commissioner for the purpose of arriving at the total value of the improvements made by the mortgagees. In the result, the learned Subordinate Judge directed the plaintiff to deposit a sum of Rs. 6997-31 as value of the improvements.

5. The mortgagees are aggrieved by the said judgment and decree of the learned Subordinate Judge and have preferred the present second appeal. Learned Counsel for the appellants contended that the learned Subordinate Judge was wrong in adopting the value of the buildings as fixed by the first Commissioner when he had already set aside the report of first Commissioner. It is pointed out by learned Counsel that in the order setting aside the Commissioner's report, there was no reservation to the effect that it was being set aside only partially with reference to the value of the trees. Learned Counsel relies upon the decision in Kuthiravattath Kogass