ADAM BAVA ROWTHER Vs. VELAYUDHAN PILLAI

JUDGEMENT

(1.) This is a second appeal by the judgment debtor from an order in execution of a decree for redemption of usufructuary mortgage. The respondents who had acquired the equity of redemption obtained a decree on 10.10.1952. When they applied for delivery of possession, the judgment debtor objected, contending that he was a Kudikidappukaran under Act 22 of 1124 and that he could not be evicted. This objection was overruled by the courts below and he has preferred this second appeal.

(2.) The first point raised by Shri Narayanan Potti, learned counsel for the appellant, was that the courts below had no jurisdiction to decide whether Kudiyirippu rights as claimed by the appellant really existed. Basing his argument on the dictum of Willis, J. in Wolverhampton New Water Works Co. v. Hawkesford 1859 (6) C.B. (H.S.) 336, 356) that when statute creates a liability not existing in common law and gives also a particular remedy for enforcing it, the party must adopt the form of remedy given by the statute, it was contended that since S.12 of the Travancore Prevention of Eviction Act 22 of 24 provides that Government shall cause a register of Kudikidappukaran to be maintained in each Pakuthy and that Government shall have power to make rules for carrying into effect the provisions contained in S.12, civil courts have no jurisdiction to decide whether a claim for Kudiyirippu is valid or not and that the sole remedy of the owner of the land holder was to raise his objection at the time of preparation of the register. It was stated that the power to make rules under the Act was the special remedy under the Act, as the rules when made would contain suitable provisions for hearing objections of land holders or owners. It was stated that rules have not yet been made and that the registers have not yet been prepared. All that the appellant can now say is that he has made an application as contemplated in S.12 of the Act, to be registered as a Kudikidappukaran in the properties sought to be redeemed. I am unable to accept the appellant's argument for more reasons than one. A section in the statute for making rules, with a possibility that such rules will contain suitable provisions for the adjudication of the existence of disputed Kudiyirippu rights, cannot in my opinion oust the jurisdiction of the civil court to decide the question. S.9 of the Act is as follows:-