VICTORIA Vs. K V NAIK

JUDGEMENT

(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: