AMMU Vs. SARASAMMA PILLAI

JUDGEMENT

(1.) THIS second appeal is against a final decree passed in a suit for redemption of mortgage. Defendants 3 and 5 to 7 who are the legal representatives of the 1st defendant are the appellants.

(2.) A preliminary decree has been passed for redemption of the mortgage of the C-schedule property on 6-9-1967. The final decree was passed on an application filed on 1-3-1975. The appellants had raised the question of tenancy in the final decree proceedings and that was negatived by the trial court which was confirmed by the first appellate court. The substantial questions of law as formulated by the appellants have been enumerated into five items in the memorandum of appeal on which notice had been issued to the respondents. But the learned counsel for the appellants has urged only two of such questions and hence I proceed to consider only those two which can be recast as under: "should the trial court have referred the question of tenancy to the Land Tribunal as per S. 125 (3) of the Kerala Land Reforms Act as the final decree application was filed only after the commencement of Act 35 of 1969? and (2) whether an earlier leasehold right created prior to the mortgage would revive on the extinguishment of the mortgage".

(3.) HE contended that when the jurisdiction of the civil court has been completely ousted by the legislature as per S. 125 (1) of the Act, the civil court should not have proceeded to decide the question of tenancy because the proviso which deals with the jurisdiction of the civil court applies only to "proceedings pending in any court at the commencement of the Kerala Land Reforms (Amendment) Act, 1969". There is no dispute about the fact that the suit was filed long prior to the commencement of the said act. But the preliminary decree in the suit was passed prior to the commencement of the said Act. Therefore, the learned counsel contends that the final decree proceedings have been commenced only on 1-3-1975 and hence it should be treated as proceedings not pending in the court at the commencement of the said Act.