JAYARAJAN Vs. GANGADHARA MENON

JUDGEMENT

(1.) PETITIONERS are respondents 6,12 and 13 before the Executing Court in e. P. No. 52/96. The only contention raised by the petitioners is that the decree is not executable since the High Court which passed a decree has no jurisdiction. The executing court refused to accept the contention and ordered execution. The C. R. P. is against this judgment.

(2.) FROM the facts set out in the application it is seen that the petition schedule property is an extent of 681/2 cents in Calicut town in which a house and few trees stood belonged to the petitioners in the O. P. The property was mortgaged under Ext. A' dated 20. 6. 1945 to one Kalyanikutty, the predecessor-ininterest of respondents. The mortgagors filed an application under S. 11 of the Kerala Agriculturist Debt Relief Act, 1970, hereinafter referred to as 'the Act' for redemption ofthe mortgage. The trial court dismissed the application for redemption by judgment dated 8. 2. 1966. The decree was confirmed in A. S. No. 3. The mortgagors filed a Second Appeal, S. A. No. 852/70. By judgment dated 14. 11. 1972 this Court allowed the second appeal and remanded the application for redemption to the trial court directing the court to consider the question whether the lessee was entitled to fixity of tenure. By judgment dated 5. 9. 1973 the trial court held that the lessee was entitled to fixity of tenure and dismissed the application for redemption. The judgment was confirmed in A. S. No. 254/73. The mortgagors filed Second Appeal, S. A. No. 4/78. This court by judgment dated 9. 2. 1983 set aside the decision of the courts below and remanded the application for fresh decision. There after by judgment dated 30. 11. 1983 the trial court held that the lessee was entitled to the benefit of the Kerala Land Reforms Act and decreed redemption of the mortgage subject to the right of the lessee to continue to be in possession of the property. On appeal by the mortgagors in A. S. No. 55784 the Sub Court held that the lease in favour of the lessee is not one exempted under Sections of the KLR Act and that the mortgagor is not an agriculturist entitled to invoke s. 11 of the Act and therefore, the appeal was dismissed on 10. 2. 1989. A Second appeal, M. S. A. No. 7/89, filed before this Court was allowed. This Court passed the following decree dated 2. 6. 1995: "this Miscellaneous Second Appeal coming on for hearing on 23. 3. 1995, upon perusing the grounds of the appeal, the judgments and decrees of the lower courts and the material papers in the case and upon hearing the arguments of Sri. M. C. Sen, Advocate for the Appellants and of Sri. M. Gopi Krislman, Advocate for respondents 5 to 10, R. 12 & R. 13 and there being no appearance for the other respondents, and the matter being called on for judgment on 2. 6. 1995, this Court doth order and decree; 1) That the decision of the Courts below be and are hereby set aside and O. P. 55/62 allowed; 2) That the plaintiffs having deposited half the mortgage amount in court below the balance amount under the mortgage is made recoverable by defendants 1 to 4 in 10 equal half yearly instalment together with 5 per cent interest per annum by sale of the right of the plaintiffs; 3) That appellants/ mortgagors will also be entitled to recover possession of the property from respondents 6 to 14 (respondents 5 to 13 in this appeal) who are the LR s. of the decreased respondent No. 5; 4) That the finding of the trial court that the legal heirs of the 5 th respondent's will be entitled to continue in possession of the property will stand vacated; 5) That the appellants/ petitioners in O. P. 55/1962 will been titled to recover possession of the property in execution of this decree; 6) That this M. S. A. be and is hereby allowed as above. This Court both further order and decree that the parties do bear their respective costs. "

(3.) LEARNED counsel for the petitioners referred the decision of the Supreme Court in Kesar Singh v. sadhu (1996) 7 SCC 711) wherein the Supreme Court held that the question regarding the excitability of appellate decree can be raised under S. 47 CPC if it goes to the root of the jurisdiction of the court which passed the decree. The same effect was the judgment in V. D. Modi v. R. A. Rehman (AIR 1970 SC 1475 ). There cannot be any doubt about the proposition raised by learned counsel for the petitioners that the jurisdiction of the court which passed the decree can be gone into at the stage of execution if it goes to the root of the matter and if the decree itself is a nullity.