PONNAMMAL Vs. GOMEZ

JUDGEMENT

(1.) Revision petitioners are judgment debtors 12 and 14 to 20 who are the legal representatives of the 3rd judgment debtor. The 13th judgment debtor who was also a legal representative of the 3rd judgment debtor released his right in favour of the decree holder. The suit was for redemption of a mortgage. Preliminary decree was passed on 19-8-1970 and a final decree application was filed on 4-2-77. The final decree was actually passed on 18-9-79 and the redemption price was deposited on 22-9-1979. It is also to be noted that this suit is instituted in 1968, i.e. before 1970.

(2.) After the final decree was passed, the decree holder filed E.P.No. 55 of 1980 for executing the decree and for recovery of possession of the property. The 3rd judgment debtor died during the pendency of the execution proceedings and his legal representatives, the revision petitioners, filed an objection in execution raising two contentions: i) that they are tenants entitled to fixity of tenure as the mortgage sought to be redeemed is an Ottikuzhikanam coming under S.2(39A) of the Kerala Land Reforms Act (hereinafter called the Act); and ii) that under Explanation IV to S.2(25) they are kudikidappukars in respect of the property and they are entitled to fixity of tenure. The execution court overruled both the objections and the revision is against the above order.

(3.) The first question as to whether the petitioners are ottikuzhikanamdars coming under S.2(39A) of the Act cannot be raised by the judgment debtors in execution as the very same question was agitated in the final decree proceedings and in the final judgment it was held that the mortgage in question is not an Ottikuzhikanam thereby denying the fixity of tenure of the judgment debtors. They are concluded by the final judgment and the matter cannot be re-agitated in execution. In that view of the matter, I confirm the finding of the execution court that the judgment debtors are not entitled to fixity of tenure on the ground that they are ottikuzhikanamdars coming under S.2(39A) of the Land Reforms Act.