MATHEW SAMUEL Vs. AYYAPPAN PANICKER AND OTHERS

JUDGEMENT

(1.) The plaintiff-decree holder in 0.S. No. 372 of 1971 on the file of the Munsiff s Court, Thiruvalla is the revision petitioner. The suit was filed for declaration of his title over the plaint schedule property and for recovery of possession thereof with mesne profits. The first respondent in this revision was the sole defendant initially in the suit. As against the decree in O.S.No. 372/72 the first respondent filed appeal A.S.No. 448 of 1972 before the District Court, Alappuzha. That appeal was dismissed with costs on 22-10-1973 and against the said judgment and decree the first respondent filed Second Appeal No. 30 of 1974 before this court. This court by the judgment dated 12-7-1976, set aside the judgment and decree of the court below and remanded the matter to the trial court for fresh disposal. In view of the direction contained in the judgment in S.A.No. 30 of 1974 the matter was referred to the Land Tribunal by the trial court. The Land Tribunal registered the case as 0 .A. No. 51 /77 and at that stage the wife of the first respondent was impleaded as additional defendant No. 2 in the suit, O.S.No. 372 of 1971. The Land Tribunal adjudicated the issue and found the first respondent to be a kudikidappukaran in respect of plaint schedule property. In view of this finding the trial court held that he was not liable to be evicted from the suit property and accordingly the suit was dismissed as per judgment and decree dated 29-11-1977. Thereafter the petitioner filed appeal A.S.No. 36 of 1978 before the Sub Court, Ailappuzha and that appeal was allowed on 20-11 -1982. Consequently the Sub Court decreed the suit, O.S.No. 372 of 1971, after setting aside the judgment and decree of the trial court. The first respondent again took up the matter before this court in S. A. No. 1069 of 1983 which was dismissed by the judgment dated 30-9-1993. As a result the judgment and decree passed by the lower appellate court were confirmed. Thereafter the petitioner filed E. P.No. 197 of 1992 before the Munsiffs Court, Thiruvalla for executing the decree passed by the lower appellate court in A.S.No. 36 of 1978. By the order dated 30-11-1993 the Munisiffs Court held that the petitioner could realise only Rs. 52.00 mentioned in the decree as costs and that the decree as regards recovery of possession of plaint schedule property was not executable as against respondents 1 and 2. It is against the said order refusing recovery of possession this revision has been filed.

(2.) The main point to be decided in this revision is whether Ext. A5 decree can be executed against respondents 1 and 2. Ext. A5 is the decree passed in A.S.No. 36 of 1978 setting aside the decree of the trial court in O.S.No. 372 of 1971 and allowing the appeal with costs. As against the judgment and decree in A.S.No. 36 of 1978, Second Appeal No. 1069 of 1983 was filed before this court by the first judgment-debtor which was dismissed confirming the judgment and decree in A.S.No. 36 of 1978. Thus the decree passed in A.S.No. 36 of 1978 has become final. The operative portion of the judgment in A.S.No. 36 of 1978 is as follows:

(3.) The second respondent who is the second judgment-debtor in the suit filed objections in E.P.-No. 197 of 1992. Her main objection is that since she is not a party to the appellate court judgment in A.S.No. 36 of 1978 the judgment and decree are not binding on her. Then, the question is whether the decree in A.S.No. 36 of 1978 can be executed against the second respondent. In order to decide this question it would be necessary to find out what exactly is the nature of right or interest put forth by the respondents in this case. This revision petition was mainly contested by the second respondent and there was no appearance for the first respondent in the present proceeding. As noticed, it is an admitted case that the second respondent is the wife of the first respondent. First respondent has claimed Kudikidappu rights in respect of the building in question. Ext. A6 judgment in S.A.No. 1068 of 1983 would reveal that the first respondent had filed three applications for purchase of kudikidappu rights under Sec. 80B of the Kerala Land Reforms Act as O.A. 206 of 1970, O.A. 2001 of 1970 and O.A. 99 of 1974. It would further reveal that the first order in O.A. 206/70 was passed on merits though the subsequent applications were disposed of on the basis of the said order. It is observed in the said judgment: