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VICTORIA V. K.V. NAIK & ORS  RD-SC 540 (9 May 1997)
K. RAMASWAMY, D.P. WADHWA
O R D E R This special leave petition arises fromthe order of the High Court of Kerala, made on 17.3.1997 in CRP No.
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.
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