BALACHANDRA PANICKER Vs. IBRAYIL

JUDGEMENT

(1.) The appellant before us is the 4th decree holder in O.S. No. 42 of 1124 of the Munsiff's Court, Parur. That was a suit filed by the predecessor in interest of the appellant for redemption and recovery of possession of the plaint schedule property which had been mortgaged to the defendant as per a deed of mortgage evidenced by Ext. D4, dated 25th Vrischigam 1104. A decree for redemption was passed in the suit on 10th December, 1953. The decree holder thereafter filed E. P. No. 1233 of 1954 for delivery of possession of the mortgaged property after depositing the mortgage amount as per the terms of the decree. That petition was however stayed by the executing court under Travancore Cochin Act VIII of 1950. Even though the order of the executing court staying the proceeding under the aforementioned Act was later set aside by the Subordinate Judge's Court, Ernakulam in an appeal filed by the decree holder A.S. 130 of 1956 , the judgment debtor carried the matter in Second Appeal to this court and that Second Appeal was ultimately allowed by this court holding that the execution was liable to be stayed under Kerala Act I of 1957, which had come into force in the meantime. Subsequently, after Act IV of 1961 was passed, consequence of which the statutory stay under Act I of 1957 stood lifted, the decree holder filed E.P. 16 of 1962 for recovery of possession of the property in execution of the decree. That petition was also however stayed by the court under Kerala Act VII of 1963 as per an order, dated 1st August, 1963. When the matters stood thus, the original decree holder died. After the statutory stay under Act VII of 1963 was vacated consequent on the coming into force of Act I of 1964, the present appellant in his capacity as assignee from the legal representatives of the decree holder filed E.P. 874 of 1964 on 9th December 1964 praying for the relief of resumption of one half of the decree schedule property under S.17 read with S.132(3)(c) of the Kerala Land Reforms Act (Act I of 1964). That application was dismissed by the executing court holding that it had no jurisdiction to entertain an application for resumption under the aforementioned provisions. The matter was carried by the appellant to the District Court in appeal and if is against the judgment of the District Court dismissing that appeal that this Second Appeal has been filed by the 4th decree holder.

(2.) After hearing both sides, we are of opinion that the view taken by the courts below that the appellant was not entitled to maintain the application for resumption before the executing court under S.132(3)(c) of Act 1 of 1964 is erroneous and unsustainable. Clause (c) of sub-s.(3) of S.132 reads:

(3.) Admittedly, the execution proceeding -- E.P. 816 of 1962 -- filed by the present appellant was pending before the executing court on the date of commencement of Act I of 1964 and it had stood stayed under the provisions of Act VII of 1963. The provisions of S.132(3)(c) are therefore directly attracted in the present case. The dismissal of E.P. 874 of 1964 by the courts below on the preliminary ground that the court had no jurisdiction to grant the relief of resumption was therefore illegal.