Victoria Vs. K.V. Naik & Ors [1997] INSC
540 (9 May 1997)
K.
RAMASWAMY, D.P. WADHWA
ACT:
HEADNOTE:
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. 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.
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