C. BALAKRISHNAN Vs. M. BHASKARAN

JUDGEMENT

(1.) THE judgment debtor is the revision Petitioner. Respondent is the decree holder. The suit was one for redemption and recovery of possession of the plaint schedule properties with mesne profits. The suit was decreed on 15th day of July, 1980. The decree reads:

(2.) ESSENTIAL facts relevant for the disposal of the issues arising in the revision petition, lie in a narrow compass. During the pendency of the suit, the learned Munsiff referred the question, whether the Petitioner is a kudikidappukaran, to the Land Tribunal under Sub -section (3) of Section 125 of the Kerala Land Reforms Act. The Land Tribunal in its turn, found that the Petitioner was not a kudikidappukaran within the meaning of Section 2(25) of the K.L.R. Act and consequently the suit was decreed as prayed for. Since the Petitioner refused to deliver the property pursuant to the directions contained in the decree, the Respondent -decree holder filed the petition, E.P. 13/84, for executing the decree. The Petitioner filed E.A. 27/84 containing the prayer that the question whether the Petitioner is a kudikidappukaran be referred to the land Tribunal for a de novo enquiry under Section 125(3) K.L.R. Act. This application was opposed by the decree holder. His argument that the earlier order of the Land Tribunal that the Petitioner -judgment debtor was not a kudikidappukaran within the meaning of Section 2(25) of the K.L.R. Act on a reference to it under Section 125(3) during the pendency of the suit, would operate as res judicata, was accepted by the executing Court and as a result of it the above E.A. was dismissed by the order under challenge in the C.R.P.

(3.) THAT the order of the Land Tribunal disposing of the reference under Section 125(3) K.L.R. Act made by the trial Court during the pendency of the suit had found that the Petitioner was not a kudikidappukaran within the meaning of Section 2(25) K.L.R. Act, is beyond dispute. The counsel for the Petitioner however, submits that the said order will not operate as res judicata because the said order was made at a time when the decree for redemption had not been passed although the suit for redemption was pending consideration. Where a mortgagee with possession erects for his residence a homestead, or resides in a hut already in existence, on the land which is the subject -matter of the mortgage, he shall, the redemption of the mortgage not withstanding, be deemed to be a kudikidappukaran in respect of such homestead or hut provided that at the time of the redemption he has no other kudikidappu or residential building belonging to him, or any land exceeding three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead and his annual income does not exceed two thousand rupees. Section 2(25) Explanation IV. So 'at the time of the redemption' if the usufructuary mortgagee is a kudikidappukaran within the meaning of Explanation IV of Section 2(25), he cannot be evicted, the learned Counsel submits. Whether or not the Petitioner was a kudikidappukaran within the meaning of Explanation IV to Section 2(25) "at the time of the redemption of the mortgage" could not have been considered by the Court during the pendency of the suit for redemption because its fate was still uncertain, and, therefore, the order disposing of the reference under Section 125(3) by the Land Tribunal would not prevent the Petitioner from seeking a reference under Section 125(3) of the question to the Land Tribunal in the execution proceedings afresh, the learned Counsel submits. It is in support of this contention he has pressed into service the principle enunciated by this Court in Retnamma's case, 1983 K.L.T. 227.