VICTORIAversusK.V. NAIK AND ORS.

A                                    VICTORIA
                                           v.
                               K.V. NAIK AND ORS.

                                    MAY 9, 1997                                        '
B                [K. RAMASWAMY AND D.P. WADHWA, JJ.]

          Kera/a Land Refonns Act, 1963 :

          Ss. 2(25) Explanation IV, 4(A)(l)(b), 13 and 125(3)-Mortgage of
C land-Suit for redemption-Mortgagee claiming fixation of tenure and in
    alternative claiming deemed Kudikidappu rights-Trial Court negatived the
    plea-Final decree passed-Trial Court, however, observed that claim regard-
    ing Kudikidappu rights could only be raised at the time of execution-High
    Court held the plea as barred by res judicata-Held, since in the suit the plea
    had been raised and negatived, it was not open to mortgagee to raise the plea
D   after passing of the final decree that he was entitled to three cents of land as
    Kudikidappu-£ven otherwise, a mortgagee remains as mortgagee unless
    limitation snaps off the link.

         Narayanan v. Kunchiyamma Parnkkutty Amma, (1986) K.L.T. 1340
E   and Balakrishnan v. Bhaskaran, (1987) 2 K.L.T. 733, referred to.

         CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)
    No. 10014 of of 1997.

         From the Judgment and Order dated 17.3.97 of the Kerala High
    Court in C.R.P. No. 2587 of 1996.
F
           M.P. Vinod for the Petitioner.

           The following Order of the Court was delivered :                                 ..
G        This special leave petition arises from the Order of the High Court
    of Kerala, made on 17.3.1997 in CRP No. 2587/96.

           The respondents-mortgagors had filed O.S. No. 285/79 for redemp-
     tion of the mortgage. The petitioner-mortgagee claimed fixity of the tenure
     in respect of the entire extent of the land under Section 4A(l)(b) and
H    Section 13 of the Kerala Land Reforms Act; in the alternative, she claimed
                                         374


                                                                                           ..
                              VICTORIA v. KV. NAIK                               375

    to be entitled to deemed Kudikidappu rights over 3 cents of the total extent A
    of 8 cents, by operation of Explanation IV to Section 2(25) of the Act. 'The
    trial Court negatived the 'ontention by decree dated July 31, 1980. Final
    decree was passed on September 30, 1992. The Court found that in a suit
    for redemption of mortgage, claim of Kudikidappu advanced by the
    petitioner arises for consideration only at the time of the execution; thus, B
    in this case, prima facie, they are not entitled to reference under Section
    125(3) of the Act. When the petitioner had carried the matter to the High
•   Court, the High Court held that it operates as constructive res judicata .
    Since that question was raised at the time when the final decree had been
    passed, the petitioner raised this point in the execution. Thus, this petition          ,
    by special leave.                                                              C
          The High Court has considered various decisions of that Court in
    reaching the conclusion; particularly, it relied upon a judgment of the
    Division Bench in Narayanan v. Kunchiyamma Parnkkutty Amma, (1986)
    K.L.T. 1340. The High Court recorded the findings thus :        •
                                                                                        D
            "In the light of this position now settled, it is clear that the judgment
            debtors are precluded from claiming that they are Kudikidap-
            pukars entitled to the protection of Explanation IV to Section 2(25)
            of the Act in view of their prior approach to the Land Tribunal
            on a claim that they are cultivating tenants entitled to an assign- E
            ment of the right, title and interest of the land owner over the land
            in question. The present plea of Kudikidappu is, therefore, barred
            by res judicata.

            It is well settled in this Court that when a claim of tenancy of
            Kudikidappu is barred by res judicata, such a question does not             F
            arise for decision within the meaning of Section 125(3) of the Act.
            (see the decision of the Full Bench in Kesava Bhat v. Subraya Bhat,
            (1979) KLT 766). It is therefore, to be held in the present case
            that the claim of Kudikidappu sought to be put forward by the
            judgment debtors does not arise and consequently no reference is            G
            called for under Section 125(3) of the Act.

            Learned counsel for the judgment debtors contended that in the
            decree for redemption that has been passed, the claim of the
            judgment debtors for protection under Explanation IV to Section
            2(25) of the Act has been left open to be decided in execution and H
    376                  SUPREME COURT REPORTS [1997] SUPP. 1 S.C.R.

A           under such circumstances the question did arise and the same
            ought to be referred to the Land Tribunal under Section 125(3)
            of the Act. All that was done by the judgment in the case was to
            take note of the plea of the judgment debtors that they were
            entitled to protection as Kudikidappukars and without deciding
            that question at the stage of tb.e decree leaving it to be decided in
B           execution in the context of Explanation IV to Section 2(25) of the
            Act. That does not mean that there is any recognition of the right
            of the judgment debtors to protection under Explanation IV to •
            Section 2(25) of the Act. Nor was there an adjudication that they
            were entitled to claim such a right. When the question of reference
c           under Section 125(3) of the Act to the concerned Land Tribunal
            is mooted, the executing court has necessarily to decide the ques-
            tion whether the claim raised arises for decision. If the executing
            court were to come to the conclusion that the question does not
            arise for decision in view of the judgment debtor being barred by
            res judicata actual or constructive, it would not be open for the
D
            executing court to refer that question to the Land Tribunal. I am,
            therefore, not in a position to accept the contention that the
            executing court had no option but to refer the question to the Land
            Tribunal.

E           8. Thus by making a reference of the claim of the judgment debtors
            that they are Kudikidappukars, the executing court has overlooked
            the fact that the claim of the judgment debtors is barred by res
            judicata in the light of the decision of the Supreme Court referred
            to above. Thereby the executing Court has committed a jurisdic-
            tional error warranting correction by this Court in exercise of its
F
             revisional jurisdiction under Section 115 of the Code of Civil
             Procedure. Since it has to be held that a question of Kudikidappu
             does not arise for decision, the order of reference made by the
             executing Court is also one without jurisdiction."

G       Learned counsel for the petitioner contends relying upon the judg-
  ment of the Division Bench of the Kerala High Court in Balakrishnan v.
  Bhaskaran, (1987) 2 K.L.T. 733, that a right of redemption is vested in the
  mortgagor under Section 60 of the Transfer of property Act, can be
  extinguished either by an act of parties or by decree of court. Deposit of
H the mortgage money under Section 83 does not ipso facto extinguishes the
                              VICTORIAv. KV.NAIK                               377

    mortgage where the mortgagee had refused to accept the deposit. To put            A
7   it differently, if the deposit is not accepted, the mortgage does not get
    extinguished; that means the parties continue to have the relationship of
    mortgagor and mortgagee. When Sections 2(25) and 125(3) of the Land
    Reforms Act are to be considered in a suit of redemption claiming the right
    of Kudikidappu as was found by the court it is not barred by the principle        B
    of constructive res judicata in executing proceedings. We find that later part
    of the view taken therein is not correct for the reason that if the plea has
    not been raised, it operates as constructive res judicata on the principle of
    "might and ought". If it is taken and rejected, it operates as res judicata and
    the same cannot be raised in execution. Even if it is left open, in equity,
    Justice and good conscience, it must not be extended to the mortgagee.            C
    After all, the mortgagee, money-lender comes into possession of the
    property as mortgagee and always remains as mortgagee unless limitation
    snaps off the link. He receives interest on the amount advanced. He cannot
    be permitted in good sense of law eat away the cake as to Kudikidappu. It
    would be abhorrence to good conscience and playing upon the property of           D
    indigent mortgagor's own property. Certainly, that is a matter gone into at
    the time of the execution. Since in the suit, the plea had been raised and
    negatived and a preliminary decree had been passed followed by a final
    decree, it was not open to the petitioner to raise the plea after the passing
    of the final decree that he was entitled to three cents of land as Kudikidap-
    pu.                                                                               E
           The special leave petition is accordingly dismissed.

    R.P.                                                       Petition dismissed.