RATNAMMA Vs. KAMALAMMA PILLAI

JUDGEMENT

(1.) The decree holders are the petitioners in this Civil Revision. The challenge is against an order of the Execution Court staying the execution and referring the question of kudikidappu to the Land Tribunal for its decision. In the suit for redemption of a mortgage with possession the mortgagee who resides in the property contended that she was a tenant or. in the alternative, a kudikidappukari and hence could not be disposed. On reference to the Land Tribunal, both the contentions were found against the respondent. The Trial Court passed a preliminary decree for redemption. The petitioners deposited the mortgage money and a final decree was also passed. When the petitioners applied for the delivery of the property in execution the respondent judgment debtor filed objections raising the contention of kudikidappu and requesting for reference of the question of kudikidappu to the Land Tribunal. The Execution Court found that at the time of execution the respondent can claim kudikidappu, referred the question of kudikidappu to the Land Tribunal under S.125(3) of the Kerala Land Reforms Act 1 of 1964 and stayed the execution proceedings by the impugned order.

(2.) Explanation IV to S.2(25) of the Kerala Land Reforms Act 1 of 1964. for short the Act, reads:

(3.) The further question that arises is whether the delivery of the decree schedule property except the hut should be postponed till the Land Tribunal gives a finding on the question of kudikidappu raised. The respondent's stand before the Execution Court was that she has no objection to the delivery of the decree schedule property excluding the hut and the ten cents on which it stands. The respondent can get the ten cents only when she purchases the kudikidappu under the Act and that too after the Land Tribunal gives a finding that she is a kudikidappukari. Till then, she can have only possession of the hut. Of course, her rights under S.79A of the Act cannot be interfered with. So, the delivery can be effected subject to the above rights of the respondent kudikipappukari and the stay imposed by the impugned order is lifted.