BALAKRISHNAN Vs. 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-s. 3 of S.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 S.2(25) of the KLR 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, EP 13/84, for executing the decree. The petitioner filed EA 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 S.125(3) KLR 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 S.2(25) of the KLR Act on a reference to it under S.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 EA was dismissed by the order under challenge in the CRP.

(3.) A learned Single Judge of this court in Ratnamma v. Kamalamma Pillai ( 1983 KLT 227 ) in similar circumstances, has held that an earlier order would not operate as res judicata and as such the application for reference made by a judgment debtor in the execution proceeding, is sustainable. The correctness of the decision was doubted and accordingly the case was adjourned under S.3 of the Kerala High Court Act for being heard by a Division Bench by the learned Judge who admitted the CRP. The reference order reads:-