K THANKAPPAN Vs. SUBHAMMAL GEETHA

JUDGEMENT

(1.) In a suit for redemption of mortgage evidenced by Ext.A1 document dated 27.04.1968, the defendants set up a plea of kudikidappu. The trial court after finding that the mortgage can be redeemed, relegated the question of consideration of kudikidappu to the execution stage. In appeal by the defendants in the suit, the said finding was confirmed.

(2.) The learned counsel for the appellants in this second appeal raised for consideration the issue that the courts below could not have relegated the question of kudikidappu to the execution stage. If as a matter of fact, it was found that the plea of kudikidappu does arise for consideration, the trial court was obliged under Section 125(3) of the Kerala Land Reforms Act, to relegate the matter to the Land Tribunal concerned and that has not been done and so, the judgments and decree of the courts below are clearly unsustainable in law.

(3.) The learned counsel for the respondent could not dispute the proposition that the issue regarding kudikidappu has to be considered at the trial stage itself. But the learned counsel pointed out that the courts below have to be satisfied that the issue of kudikidappu does arise for consideration and then alone, reference was called for.