PETITIONER:
VICTORIA
Vs.
RESPONDENT:
K.V. NAIK & ORS.
DATE OF JUDGMENT: 09/05/1997
BENCH:
K. RAMASWAMY, D.P. WADHWA
ACT
HEADNOTE
JUDGMENT
ORDER
This special leave petition arises fromthe order of the High Court of Kerala, made on 17.3.1997 in CRP No. 2587/96.
The respondents-mortgagorshad filed O.S. No.285/79 for redemption of themortgage. Thepetitioner-mortgagee claimedfixityof thetenure in respect of the entire extent of the land under Section 4(1) (10 (b) and Section 13 of the Kerala LandReformsAct; inthe alternative, she claimedto be entitledto deemed Kudikidappu rights over 3 cents of the total extent of8 cents, by operation of Explanation IV to section 2(25) of theAct. The trial Court negatived the contention by decree dated July 51, 1980. Final decree was passed on September 30, 1992.The court of Kudikidappu advancedby the petitionerarises for consideration only at the time of the execution; thus, in this case, prima facie, they are not entitledto reference under Section 125(3)of theAct. When the petitioner had carriedthe matter tothe High court held that it operates as constructive res judicata. Since that question was raised at the time when the final decree had been passed, the petitionerraised this point in the execution. Thus, this petition by special leave.
The High Court hasconsidered various decisions ofthat Court in reaching theconclusion; particularly, it relied upon ajudgment of the Division Bench in Narayanan s. Kunchiyamma ParukkuttyAmma [1986 K.L.T. 1340]. TheHigh Court recordedthe findings thus:
"In the light of this position now
settled, it isclear that the
judgment debtors ar precluded from
claiming that they are
Kudikidappukars entitled to the
protectionof Explanation IV to
section 2(25) of the Act in view
oftheir prior approach tothe Land
Tribunal on a claim thatthey are
cultivating tenants entitled to an
assignment of the right title and
interest of the land ownerover the
land in question. The present
plea of Kudikidappu is, therefore,
barred by res judicata.
Itis well settled in this Court
that whena claim of tenancy of
Kudikidappu is barred by res
judicata , such a question does
not arisefor decision within the
meaning of Section 125(3) of the
Act. (seethe decision ofthe Full
Bench in Kesava Bhat vs. Subraya
Bhat, 1979 KLT 766). It is
therefore, to be held in the
present case tha the claim of
Kudikidappa sought to be put
forward and consequently no
referenceis called for under
Section 125(3) ofthe Act,
Learned counselfor thejudgment
debtors contended thatin the
decree forredemption thathas been
passed, the claimof thejudgment
debtors for protection under
Explanation IV to section 2(25)
ofthe Acthas been left open to be
decided in execution and under
such circumstancesthe question did
arise andthe same ought to be
referred to the Land Tribunal under
Section 125(3) of the Act.All that
was done by the judgment in the
case was to takenote ofthe plea
ofthe judgment debtors that they
were entitled to protection as
Kudikidappukars and without
deciding that question at the stage
ofthe decree leaving it to be
Explanation IV toSection2(25) of
the Act. Norwho there an
adjudication that they were
entitled to claimsuch a right.
When the questionof claim such a
right. When the question of
reference under Section 125(3) of
the Actto the concerned Land
Tribunal is mooted, the executing
court has necessarily to decide the
question whether the claim raised
arises for decision.If the
executing court were to come to the
conclusionthat the question does
not arisefor decision in view of
the judgment debtor being barred by
res would not be openfor the
executing court to refer that
question to the Land Tribunal. I
am, therefore, notin a position to
accept the contention that the
executioncourt had no option but
torefer the question tothe Land
Tribunal.
8.Thus by making a reference of
the claimof thejudgment debtors
that theyare Kudikidappukars, the
execution court has overlooked the
fact that the claim of thejudgment
debtors is barredby resjudicata
inthe light of the decision of the
supreme Court referred to above.
Thereby the executing Court in
under section 115of theCode of
civil Procedure.Since it has to
be held that a question of
Kudikidappu does not arise for
decision, the order of reference
made by the executingCourt is
also one without jurisdiction."
Learned counsel for the petitioner contends relying upon the judgment of the Division Bench of the KeralaHigh Court in Balakrishnan vs. Bhaskaran [1987 (2) K.L.T] that a right of redemption is vested in the mortgagor under Section60 ofthe Transfer of property Act, can be extinguished either byan actof parties orby decree of court. Depositof themortgage money under Section 83does not ipso facto extinguishes themortgage where the mortgagee had refused toacceptthe deposit. Toput it differently , if thedepositis notaccepted, the mortgagedoes not get extinguished; that means the patties continueto have the relationship of mortgagor and mortgagee. When Section 2,(25) and 125(3) ofthe Land Reforms Act are to be considered in a suit of redemption claimingthe right of Kudikidappu asfound, is not barred by the principle of constructive res judicata in executingproceedings. Wefind that later partof the view taken therein is not correct for the reason thatif the plea hasnot been raised, it operates as constructive res judicataon theprinciple of " might and ought". Ifit is taken andrejected, it operates as res judicata and the same cannot be raisedin execution .Even if it is left open, inequity,justiceand good conscience, it must not be extended to the mortgagee. Even if it is left open, in equity,justiceand good conscience, itmust not be extendedto themortgagee. After all, the mortgagee, money-lender comes into possession of theproperty as mortgagee and always remains as mortgagee unless limitation snaps off the link. Hecannot be permitted in good sense of law toeat away the cake as Kudikidappu, It would be abhorrence to good conscience and playing uponthe property of indigent mortgagor’s own property.Certainly, thatis a matter gone into at the time of the execution.Since in the suit. the plea had been raised and negatived and a preliminary decree hadbeen passed followedby a final decree,it was not open to thepetitioner to raise theplea after the passing of the final decreethat hewas entitled to three cents of landas kudikidappu.
The special leave petition is accordinglydismissed.