KRISHNAN ASSARI Vs. PARAMESWARAN PILLAI

JUDGEMENT

(1.) An obstructor succeeded in two courts below in his resistance against delivery of a property covered by the decree. The obstructor is none other than the brother of the first judgment-debtor. Other judgment-debtors are the children of the first judgment-debtor. This second appeal is by the decree-holder.

(2.) The appellant obtained the decree for redemption of two usufructuary mortgages in respect of a land having thirtyeight cents in extent. All the steps so far adopted by the decree-holder to get possession of the mortgaged property did not fructify. The turn in the fight is consequent on the obstruction made when the Amin went to effect delivery of possession of the property. Execution Court upheld the obstructor's claim in regard to thirtyone cents, but rejected the claim in regard to the balance area of seven cents on which a building is situate. Both the obstructor and the decree-holder challenged the said order of the execution Court. It was the obstructor who filed the appeal in the Court below. Then the decree-holder preferred cross-objections in that appeal. The lower appellate Court confirmed the order subject to one modification i.e., the execution Court was directed to refer the claim of the obstructor that he is a kudikidappaukaran to the Land Tribunal. Hence this second appeal.

(3.) The decree for redemption passed by the trial Court against the judgment-debtors was confirmed in appeal. Two among the judgment-debtors raised objections during execution proceedings that the decree is void as against them on the ground that they were wrongly shown as minors in the suit. Those objections were overruled against which a Civil Revision Petition was filed in this Court, but that revision was also dismissed. Then another judgment-debtor filed a suit challenging the decree as having fraudulently obtained in collusion between his mother (first judgment-debtor) and the decree-holder. That strategy also did not succeed. Ultimately, the decree-holder reached the stage when the Court ordered delivery of property. It was then that the respondent herein, who is brother of the first judgment-debtor, obstructed. The obstruction is based on Ext.B1 mortgage deed dated 01-02-1965; purported to have been executed by the first judgment-debtor on her behalf as well as on behalf of her minor children. (The decree was passed by the trial Court on 17-10-1975). An alternate contention was raised by the obstructor that he is a kudikidappukaran in respect of another building situate in the property described in Ext.B1. Even after upholding the obstructor's right over thirtyone cents, the lower appellate Court wanted to pursue the matter further and hence remitted the case to the execution Court directing it to refer the question of kudikidappu to the Land Tribunal.