D. PRABAVATHY Vs. NARAYANI AMMA LALITHAMMA

JUDGEMENT

(1.) PETITIONER is third judgment debtor and first respondent decree holder in O.S.1660/83 on the file of Addl.Munsiff Court, Thiruvananthapuram. A suit was filed for redemption of registered mortgage deed 3912/72 dated 28.3.72 executed by deceased second defendant and her son the second respondent. On the death of second defendant, petitioner and respondents 4 to 6, the other children were impleaded as her legal heirs. In the suit, additional defendants, who were impleaded on the death of second defendant, filed a written statement contending that they are kudikidappukars entitled to protection of Kerala Land Reforms Act. Though an issue regarding kudikidappu was framed that question was not referred to the Land Tribunal and no finding was entered into, holding that that the question has to be decided in the execution proceedings. Subsequently a decree for redemption and recovery of possession was granted. First respondent filed E.P.889/96 for execution of the decree. In the execution petition only third judgment debtor/ petitioner filed objection. It was contended in the objection that she is a kudikidappukari entitled to protection of Kerala Land Reforms Act and as the question was not decided by the trial court and was left open to be decided in the execution stage, it is to be referred to the Land Tribunal as provided under Section 125(3) of Kerala Land Reforms Act. The executing court following the decision of Apex Court in Victoria v. : (1997)6SCC23 held that, the question of Kudikidappu will not arise at the execution stage and overruled the objection. This revision petition is filed challenging that order under Section 115 of the Code of Civil Procedure.

(2.) LEARNED Counsel appearing for petitioner and first respondent were heard.

(3.) LEARNED Counsel appearing for respondent relying on the decision of the Apex Court in Victoria's case(supra) argued that the decision applies not only to a case where the question of kudikidappu was raised and decided, but also to a case where it was left opened to be decided at the execution stage. It was also argued that Their Lordships of the Supreme Court held that in equity justice and good conscience, a mortgagee is not entitled to claim kudikidappu right and therefore the finding of the executing court is perfectly correct and there is no illegality or irregularity warranting interference.