- (1.) This special leave petition arises from the order of the High court of Kerala, made on 17/3/1997 in CRPNo. 2587 of 1996.
(2.) The respondents mortgagors had filed OS No. 285 of 1979 for redemption of the mortgage. The petitioner mortgagee claimed fixity of the tenure in respect of the entire extent of the land under Section 4-A (1 (b) and Section 13 of the Kerala Land Reforms Act; in the alternative, she claimed to be entitled to deemed Kudikidappu rights over 3 cents of the total extent of 8 cents, by operation of Explanation IV to Section 2 (25 of the Act. The trial court negatived the contention by decree dated 31/7/1980. Final decree was passed on 30/9/1992. The court found that in a suit for redemption of mortgage, claim of Kudikidappu advanced by the petitioner arises for consideration only at the time of the execution; thus, in this case, prima facie, they are not entitled to reference under Section 125 (3 of the Act. When the petitioner had carried the matter to the High court, the 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 petitioner raised this point in the execution. Thus, this petition by special leave.
(3.) The High court has considered various decisions of that court in reaching the conclusion; particularly, it relied upon a judgment of the division bench in Narayanan v. Kunchi Amma Parukutty Amma. The High court recorded the findings thus: "In the light of this position now settled, it is clear that the judgment-debtors are precluded from claiming that they are Kudikidappukars entitled to the protection of Explanation IV to Section 2 (25 of the Act in view of their prior approach to the Land tribunal on a claim that they are cultivating tenants entitled to an assignment of the right, title and interest of the landowner over the land in question. The present plea of Kudikidappu is, therefore, barred by res judicata. It is well settled in this court that when a claim of tenancy of Kudikidappu is barred by res judicata, such a question does not arise for decision within the meaning of Section 125 (3 of the Act. (See the 25 decision of the full bench in Kesava Bhat v. Subraya Bhat. ) It is therefore, to be held in the present case that the claim of Kudikidappu sought to be put forward by the judgment-debtors does not arise and consequently no reference is called for under Section 125 (3 of the Act. Learned counsel for the judgment-debtors contended that in the decree for redemption that has been passed, the claim of the judgment debtors for protection under Explanation IV to Section 2 (25 of the Act has been left open to be decided in execution and under such circumstances the question did arise and the 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 take note of the plea of the judgment-debtors that they were entitled to protection as Kudikidappukars and without deciding that question at the stage of the decree leaving it to be decided in execution in the context of Explanation IV to Section 2 (25 of the Act. That does not mean that there is any recognition of the right of the judgment-debtors to protection under Explanation IV to Section 2 (25 of the Act. Nor was there an adjudication that they were entitled to claim such a right. When the question of reference under Section 125 (3 of the Act to the Land tribunal concerned 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 conclusion that the question does not arise for decision in view of the judgment-debtor being barred by res judicata, actual or constructive, it would not be open for the executing court to refer that question to the Land tribunal. I am, therefore, not in a position to accept the contention that the executing court had no option but to refer the question to the Land tribunal. 8. Thus by making a reference of the claim of the judgment-debtors that they are Kudikidappukars, the executing court has overlooked the fact that the claim of the judgment-debtors is barred by res judicata in the light of the decision of the Supreme court referred to above. Thereby the executing court has committed a jurisdictional error warranting correction by this court in exercise of its revisional jurisdiction under Section 115 of the Code 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 executing court is also one without jurisdiction. ";