VELAYUDHAN KRISHNAN Vs. BHAGAVATHY PADNIAKSH

JUDGEMENT

(1.) The petitioner in E.A.No.1154 of 1991 in E.P.No. 58 of 1989 in O.S.No.153 of 1980, Munsiff Court, Thiruvananthapuram, is the petitioner. The matter arises in execution. The respondents herein are the plaintiffs-decree holders. The revision-petitioner is the defendant judgment debtor. The suit was one for redemption. 'A final decree for redemption was passed. In execution, the judgment debtor revision petitioner filed an application under S.125(1) of the Kerala Land Reforms Act, to refer to the Land Tribunal to adjudicate the issue of kudikidappu. The Land Tribunal held that the defendant is not entitled to get kudikidappu right over the decree schedule property. The court below ordered delivery of the decree schedule property on 1-6-1991. The revision petitioner filed C.R.P.No. 956 of 1991 before this Court, wherein he claimed that he is entitled to protection under Act 31 of 1975. Though the revision was dismissed in other grounds, this Court directed the lower court to consider the plea of the revision petitioner based on Act 31 of 1975. It is thereafter, the judgment debtor revision petitioner filed E.A.No. 1154 of 1991 praying that the execution petition be dismissed, in view of the provisions of Act 31 of 1975. The court below considered the matter in great detail and held that the provisions of the said Act will not apply to the instant case, though the revision petitioner is a member of Scheduled Tribe. E.A. No. 1154 of 1991 was dismissed. The court below ordered delivery of the decree schedule property. The judgment debtor has come up in revision.

(2.) I heard counsel.

(3.) Before me, it is common ground that the revision petitioner judgment debtor is a member of Scheduled Tribe entitled to the protection of Act 31 of 1975. The sole question that was argued before me that S.4 read with S.2(g) of Act 31 of 1975 will not apply to the instant case. According to the decree holders, the very purpose of the Act is to restrict the transfer of lands by members of Scheduled Tribes in the State of Kerala and also for restoration of possession of lands alienated by such members. The enactment only interdicted or restricted alienation of properties by members of Scheduled Tribes. The revision petitioner is a mortgagee, who obtained possession of the decree schedule property as security. The relationship between the judgment debtor and the decree holders is that of mortgagor-mortgagee. The said jural relationship was put an end to by depositing the mortgage amount. The question is whether in a case where the mortgagee has to deliver the property as per the decree of court, S.4 read with S.2(g) of Act 31 of 1975 is applicable