OP(C) No. 2742 of 2011 & CRP Nos. 248 & 249 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** ## **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** ## **FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933** ## **OP(C).No. 2742 of 2011(O)** **------------------------AGAINST THE ORDER DATED 08/08/2011 IN EA.82/2011,EP.139/2008 IN OS.67/1980 of M.C.,PARAPPANANGADI** **....................** ## **PETITIONER(S):** - **-----------------------** **1. BALAKRISHNAN,S/O.KIZHAKKEPURAKKAL KARAPPAN @ APPUNNI,NEDUVA AMSOM DESOM,TIRURANGADI TALUK,MALAPPURAM DISTRICT.** **2. RAMANI,D/O.KIZHAKKEPURAKKAL KARAPPAN @ APPUNNI,NEDUVA AMSOM DESOM,TIRURANGADI TALUK, MALAPPURAM DISTRICT.** **3. GANESAN,S/O.KIZHAKKEPURAKKAL KARAPPAN @ APPUNNI,NEDUVA AMSOM DESOM,TIRURANGADI TALUK, MALAPPURAM DISTRICT.** **4. MANIKANDAN,S/O.KIZHAKKEPURAKKAL KARAPPAN @ APPUNNI,NEDUVA AMSOM DESOM,TIRURANGADI TALUK, MALAPPURAM DISTRICT.** **5. BHAVANI,D/O.KIZHAKKEPURAKKL KARAPPAN @ APPPUNNI,NEDUVA AMSOM DESOM,TIRURANGADI TALUK, MALAPPURAM DISTRICT.** **6. VISWAN,S/O.KIZHAKKEPURAKKAL KARAPPAN @ APPUNNI,NEDUVA AMSOM DESOM,TIRURANGADI TALUK, MALAPPURAM DISTRICT.** **7. PRAMEELA,D/O.KIZHAKKEPURAKKAL KARAPPAN** - **@ APPUNNI,NEDUVA AMSOM DESOM,TIRURANGADI TALUK, MALAPPURAM DISTRICT.** **BY ADVS. SRI.SAJU.S.A SRI.K.C.KIRAN SMT.P.A.SHEEJA** **AV** ## **OPC.NO.2742/2011** ## **RESPONDENT(S):** **------------------------** **PALAKKAL DEVAKI AMMA,D/O.PARVATHY AMMA, CHEVAYUR AMSOM DESOM,KOZHIKODE DISTRICT, PIN-673017.** **BY ADVS. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11/11/2011, ALONG WITH CRP NO. 248 OF 2011 CRP NO. 249 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AV** ## **OPC.NO.2742/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **P1 : COPY OF THE ORDER OF THE COURT OF THE MUNSIFF OF PARAPPANANGADI IN I.A.NO.2085/1992 IN O.S.NO.67/1980 ON ITS FILE DATED 13.12.2002.** - **P2 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P.NO.15069/2003 DATED 15.05.2003.** - **P3 : COPY OF THE JUDGMENT OF THE COURT OF THE SUBORDINATE JUDGE OF TIRUR IN A.S.NO.50/2003 DATED 07.02.2008. P4 : COPY OF THE ORDER OF THE COURT OF THE MUNSIFF OF PARAPPANANGADI IN E.A.NO.82/2011 IN E.P.NO.139/2008 IN O.S.NO.67/1980 DATED 08.08.2011.** ## **RESPONDENT'S EXHIBITS : NIL** ## **/TRUE COPY/** ## **P.A TO JUDGE** ## **AV** ## **THOMAS P. JOSEPH, J.** **-------------------------------------O.P.(C) No.2742 of 2011 & C.R.P.Nos.248 & 249 of 2011 -------------------------------------Dated this the 11[th] day of November, 2011.** ## **JUDGMENT** The question arising for a decision in this Original Petition and Civil Revisions is whether a mortgagee having raised a plea of fixity of tenure under Sec.13 of the Kerala Land Reforms Act (for short, “the Act”) in a suit for redemption of mortgage and invited an adverse decision on that plea, he or his legal representatives could, in the execution proceeding claim protection of deemed kudikidappu under Explanation IV to Sec.2(25), of the said Act in view of the decision in **Victoria v. K.V.Naik and others ((1997) 6 SCC 23)** ? The facts of the case are thus: 2. Respondent created a mortgage in favour of one Karuppan @ Appunni in the year, 1951 and filed O.S.No.67 of 1980 for redemption of mortgage. Karuppan @ Appunni, 1[st] defendant in the suit while resisting the suit on various grounds contended that the transaction is not a mortgage, it is a lease, that he is entitled to fixity of tenure under Sec.13 of the Act as he is a cultivating tenant and hence the suit is liable to be dismissed. The claim of Karuppan @ Appunni regarding fixity of tenure was referred to the Land Tribunal (for short, “the Tribunal”) for a decision under Sec.125(3) of the Act. The Tribunal **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 2 answered the reference in the affirmative. Learned Munsiff, acting upon that finding dismissed the suit. The first appellate court confirmed that dismissal. Respondent took up the matter in Second Appeal (S.A.No.787 of 1988). This Court, by judgment dated 12.03.1992 reversing the judgment and decree of the first appellate and trial courts and finding of the Tribunal held that transaction is a mortgage and that the respondent is entitled to get it redeemed. A preliminary decree was granted in favour of the respondent for redemption of mortgage. Respondent filed I.A.No.2085 of 1992 for passing final decree in the case. Karuppan @ Appunni died on 06.09.1992 and his legal representatives (petitioners) were brought on record. Petitioners claimed in the final decree proceeding that they are entitled to get value of improvements. The court found that since Karuppan @ Appunni has been found to be a mortgagee, petitioners are not entitled to claim value of improvements (as if they are tenants of the property). I.A.No.2085 of 1992 was allowed and a final decree was passed. Petitioners challenged that final decree in A.S.No.50 of 2003 before learned Sub Judge, Tirur. In A.S.No.50 of 2003, petitioners filed I.A.No.2021 of 2007 claiming that they are entitled to kudikidappu in view of Explanation IV to Sec.2 (25) of the Act and requesting to refer that question to the Tribunal under Sec.125(3) of the Act. That application was dismissed by order dated 16.11.2007. Petitioners challenged that order in W.P.(C) No.34914 of 2207. This Court, by judgment dated 28.11.2007 directed the learned Sub Judge to hear the appeal taking into consideration all contentions including plea of **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 3 petitioners for kudikidappu and the contention of respondent that the said plea is barred by res judicata. Petitioners filed I.A.No.2500 of 2007 to include an additional ground in A.S.No.50 of 2003 (in challenge of the final decree) that they are entitled to the protection of kudikidappu after redemption of mortgage. 3. In the meantime, respondent filed execution petition in the trial court to execute the final decree and as petitioners contend, the executing court ordered delivery without notice to them. Petitioners filed O.P.No.15069 of 2003. This Court by Ext.P2, judgment dated 15.05.2003 (produced in O.P.No.2742 of 2011) allowed the respondent to take delivery of the suit property except the two houses situated therein (in respect of which petitioners claimed kudikidappu). Petitioners contended that of the said two houses, one was constructed by karuppan @ Appunni while the other was constructed by his son (1[st] petitioner). Respondent has taken delivery of the property excluding the two houses referred above. 4. While so, learned Sub Judge, Tirur disposed of A.S.No.50 of 2003. While confirming the final decree and the finding that petitioners are not entitled to get value of improvements, learned Sub Judge held that applications for kudikidappu (which in the meantime petitioners had preferred by petitioners before the Tribunal) have already been dismissed by the Tribunal and hence the question of reference (as claimed in I.A.No.2021 of 2007) did not arise but, observed that the ‘vested right of kudikidappu’ of petitioners can be raised in execution. In otherwords, the claim of kudikidappu raised by petitioners was **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 4 relegated to be decided in execution. With the above observations and directions A.S.No.50 of 2003 was dismissed. Challenging that judgment, a Regular Second Appeal is pending in this Court. 5. Respondent filed E.P.No.139 of 2008 for delivery of the two houses as well (which as per Ext.P2, judgment dated 15.05.2003 in O.P.No.15069 of 2003 was excluded from delivery then). In E.P.No.139 of 2008 petitioners filed E.A.No.82 of 2011 claiming protection of kudikidappu under Explanation IV to Sec.2(25) of the Act and requesting that question to be referred to the Tribunal under Sec.125(3) of the Act. That application was resisted by the respondent on various grounds including a plea of res judicata. It was contended by the respondent that Karuppan @ Appunni had raised a claim of fixity of tenure under Sec.13 of the Act, that claim was referred to the Tribunal, found in favour of Karuppan @ Appunni and ultimately this Court in the Second Appeal reversed that finding and held that the transaction between respondent and Karuppan @ Appunni is only a mortgage. Executing court placing reliance on the decision in **Victoria** ’s case held that the plea of kudikidappu is barred by res judicata and hence no question of reference to the Land Tribunal is involved as the question of kudikidappu does not “arise” for a decision under Sec.125(3) of the Act. Executing court also held that to claim protection under Explanation IV to Sec.2(25) of the Act, one must be a “mortgagee” in possession but the claim of Karuppan @ Appunni all along was that he was a tenant and hence also question of kudikidappu does not arise. **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 5 Ext.P4, order dated 08.08.2011 of the executing court to that effect is under challenge in O.P.(C) No.2742 of 2011. 6. On the request of petitioners, the Tribunal had in the meantime initiated S.M. Proceedings (when the matter was pending in the civil court) as regards the two houses in question. The Tribunal and later, the Appellate Authority(LR) found that since Karuppan @ Appunni was only a mortgagee of the suit property, claim of kudikidappu raised by petitioners (his legal representatives) under Explanation IV to Sec.2(25) of the Act does not arise. The S.M. Proceedings were decided accordingly. Those orders are under challenge in C.R.P.Nos.248 of 2011 and 249 of 2011. 7. It is contended by Shri T.Krishnanunni, learned Senior Advocate for petitioners that the executing court was not right in placing reliance on the decision in **Victoria** ’s case. It is contended that the claim of kudikidappu falling under Explanation IV to Sec.2(25) of the Act was not raised or decided either in the trial side or in the execution side at any earlier point of time and hence, the question of that plea being barred by res judicata does not arise. It is contended that in view of Explanation IV to Sec.2(25) of the Act, petitioners could raise the claim for protection under the said provision only “at the time of redemption” which arises only in the course of execution when even after the respondent deposited the mortgage money in the year, 2003, petitioners refused to deliver back the documents and possession of the property and consequently respondent filed petition for execution of the final decree. The claim under **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 6 Explanation IV to Sec.2(25) of the Act could be raised only at the time of redemption, in the course of execution. Hence it was not possible for petitioners or their predecessor-in-interest to make a claim under Explanation IV to Sec.2 (25) of the Act at any time before redemption. Hence the question of the said plea being barred by constructive res judicata also does not arise as that rule would apply only if petitioners or their predecessor-in-interest could have raised the plea earlier, but did not do so. It is also contended that the decision in **Victoria** ’s case has no application to the facts of this case since in this case the claim for protection under Explanation IV to Sec.2(25) of the Act was not raised or rejected at any proper point of time and instead, the first appellate court while deciding A.S.No.50 of 2003 arising from the final decree has relegated the plea of kudikidappu to be raised in execution. Learned Senior Advocate has also invited my attention to the decisions in **Balakrishnan v. Bhaskaran (1987** **(2) KLT 733), Janaki Padmakshi v. Saraswathi & another (2000 (1) KLJ 453), Vidhyadharan v. Sivadas (2001(2) KLT 605)** and **Prabhavathy v. Narayani Amma (2007 (2) KLT SN 20- Case** **No.30)** . It is the further contention of learned Senior Advocate that this is not a case where Karuppan @ Appunni had raised a claim of deemed tenancy under Sec.4A(1)(b) of the Act, he only pleaded that the transaction between him and the respondent is only a lease which question alone was referred to the Land Tribunal and hence, the decision in **Victoria** ’s case has no application. On **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 7 the above contentions, it is argued that Ext.P4, order (in O.P.(C) No.2742 of 2011) passed by the executing court is not sustainable. It is prayed that the said order may be set aside and the claim of kudikidappu raised by petitioners be referred to the Tribunal under Sec.125(3) of the Act. 8. Learned Senior Advocate, Shri A.P.Chandrasekharan appearing for the respondent has contended that if not a claim under Sec.4A(1)(b) of the Act, Karuppan @ Appunni had claimed fixity of tenure under Sec.13 of the Act, requested for a reference under Sec.125(3), that request was allowed and the Tribunal found in favour of fixity of tenure. But, this Court in S.A.No.787 of 1988 reversed the findings of first appellate/trial courts and the Tribunal and held that no lease is involved but the transaction is a mortgage. It is contended that Karuppan @ Appunni never raised a claim of kudikidappu under Explanation IV to Sec.2(25) of the Act until he died on 06.09.1992. Hence, his legal representatives could not make a claim of kudikidappu under Explanation IV to Sec.2(25) of the Act. It is argued that the privilege granted under Explanation IV to Sec.2(25) of the Act is personal to the mortgagee and does not enure to the benefit of his legal representatives. In so far as Karuppan @ Appunni had not made any claim for that privilege, his legal representatives are not entitled to claim kudikidappu. Learned Senior Advocate has also referred to me the purpose of agrarian reforms brought about by the Act – to provide land for the landless and not to defeat a claim for redemption of mortgage made by the indigent mortgagor against the mortgagee-money lender. It is contended that in **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 8 so far the claim for fixity of tenure was raised by Karuppan @ Appunni under Sec.13 of the Act and ultimately found against and he having not made any claim for kudikidappu during his life time, claim made by petitioners in that regard is bared by res judicata, actual and constructive as held by the Apex Court in **Victoria** ’s case. In that view of the matter, it is contended that there is no reason to interfere with Ext.P4, order. 9. I have referred to the factual scenario in the case. It is not disputed that Karuppan @ Appunni had claimed fixity of tenure under Sec.13, if not under Sec.4A(1)(b) of the Act, that claim was referred to the Tribunal and ultimately, the finding of the Tribunal and of the first appellate court were reversed by this Court in S.A.No.787 of 1988. He had also not made any claim for kudikidappu. Now the question is whether on account of that, claim made by petitioners for protection under Explanation IV of Sec.2 (25) of the Act in the execution proceeding is to be referred under Sec.125(3) of the Act as if that question “arises” for a decision. 9. Dwelling upon the expression 'arises' occurring in Sec.125(3) of the Act, it has been held many a times that the question should genuinely and actually “arise” for a decision as distinguished from the question being “raised” for a decision. The question of reference under Sec.125(3) of the Act would arise only if the question really “arises” for a decision. If on the rule of res judicata, actual or constructive, the question does not “arise” for a decision, then **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 9 the question of reference to the Tribunal under Sec.125(3) of the Act does not arise. My endeavour in this proceedings is to decide whether the claim of kudikidappu raised by petitioners under Explanation IV to Sec.2(25) of the Act does “arise” for a decision so that, the question is to be referred to the Tribunal. 10. Going by Explanation IV to Sec.2(25) of the Act it is true that the question of kudikidappu can be raised “at the time of redemption”. Referring to that expression, a Division Bench of this Court in **Balakrishnan v. Bhaskaran** (supra) (that case related to a redemption of mortgage) held that the words “at the time of redemption” occurring in Explanation IV to Sec.2(25) of the Act are not synonymous with the words ''at the time for redemption''. The Division Bench held that the time for redemption is any time after the money payable in respect of the mortgage has become due and before a suit for redemption of mortgage property is barred. The Division Bench, in paragraph 8, held that the filing of suit (for redemption) does not ipso facto extinguish the mortgage, the mortgage comes to an end or the right of redemption would get extinguished only on the mortgagor depositing the price of redemption pursuant to the directions contained in the mortgage decree and that the time at which the deposit aforesaid is made is 'at the time of redemption' of a mortgage under law. It is further held that the said time can arise only after passing of the decree. If the judgment debtor (in the suit for redemption) refuses to hand over the **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 10 documents and deliver property to the decree holder on the latter depositing the mortgage money pursuant to the directions in the decree, decree holder has to initiate execution proceedings for recovery of possession of the property. That is the stage at which the question whether a mortgagee with possession is a kudikidappukaran arises for a consideration. The matter will be substantially in issue only at that stage. It is also held that it is when in spite of deposit of mortgage money the judgment debtor in the suit for redemption refuses to deliver back the documents and property to the decree holder and, the decree holder to get back the possession of property and documents initiates execution proceedings that the stage, ''at the time of redemption'' comes. In the said decision it was held that the stage when the judgment debtor could claim protection of Explanation IV to Sec.2(25) of the Act is ''at the time of redemption'' and hence the question of constructive res judicata on account of the plea not being raised earlier does not arise. In holding so, the Division Bench affirmed the decision of the Single Bench in **Ratnamma v. Kamalamma Pillai (1983 KLT 227).** ## **11. In Janaki Thankamma v. Kamalakshy Sumangala** **(1997 (1) KLJ 30)** , a learned Judge of this Court while referring to the stage at which a claim under Explanation IV to Sec.2(25) of the Act could be raised in a suit for redemption, held that the claim could be raised only in execution proceedings at the time of actual eviction. It was also held that rejection of a **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 11 claim of kudikidappu at an earlier stage would not bar petitioner raising the plea in execution. In holding so, learned Judge placed reliance on the decision in **Ratnamma v. Kamalamma Pillai** (which has been affirmed by the Division Bench in **Balakrishnan v. Bhaskaran** (supra). 12. Yet another decision learned Senior Advocate has brought to my notice on behalf of petitioners is **Janaki Padmakshi v. Saraswathi &** **another** (supra). There, the plea of kudikidappu raised by the 1[st] judgment debtor in the preliminary decree proceeding was deferred for consideration at a later stage. In the final decree proceeding, it was specifically provided that the plea should be considered at the execution stage. In the course of execution, judgment debtor raised the claim of protection under Explanation IV to Sec.2(25) of the Act. This Court distinguished the decision in **Victoria** 's case holding that in **Janaki Padmakshi** 's case the trial court had not negatived the contention with regard to kudikidappu under Explanation IV to Sec.2 (25) of the Act, the claim was also not rejected but was relegated to the execution proceeding for a decision and hence the decision in **Victoria** 's case has no application. 13. In **Vidhyadharan v. Sivadas –** supra (that decision is rendered by the learned Judge who decided **Janaki Thankamma v. Kamalakshy Sumangala** (supra)) the executing court referred the claim **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 12 made by the judgment debtor under Explanation IV to Sec.2(25) to the Tribunal under Sec.125(3) of the Act. The Tribunal held that judgment debtor is not entitled to kudikidappu as he had no possession as on 01.01.1970. Executing court accepted that finding and ordered delivery. That order was challenged by the judgment debtor in civil revision in this Court. Referring to the said finding of the Tribunal, learned Judge relied on the Full Bench decision in **Mary** **Yohannan v. Sreekumaran Nair (1991 (2) KLT 751)** and held that even though judgment debtor became kudikidappukaran during 1978-79, right under Sec.80A of the Act is not restricted to persons who acquired status of kudikidappukaran before 01.01.1970 alone and hence the view taken by the Tribunal is not correct. But, learned Judge refused to interfere with the ultimate order passed by the Tribunal that the judgment debtor in that case was not entitled to the protection under Explanation IV to Sec.2(25) of the Act since the trial court had negatived the claim of kudikidappu. Hence the question did not “arise” for a decision in execution. Learned Judge placed reliance on the decision in **Victoria** 's case. 14. Yet another decision learned Senior Advocate has brought to my notice on behalf of petitioners is **Prabhavathy v. Narayani Amma** (supra). There, reference was made to **Balakrishnan v. Bhaskaran, Janaki Padmakshi v. Saraswathi & another** and **Vidhyadharan v.** **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 13 **Sivadas** (supra). It was observed that Explanation IV to Sec.2(25) of the Act enables a mortgagee to claim kudikidappu at the time of redemption and therefore, the question whether a mortgagee had claimed kudikidappu at the trial stage and whether it was considered and negatived may not be very relevant for considering the question whether a mortgagee is entitled to the protection under Explanation IV to Sec.2(25) of the Act. 15. Before referring to the decision **Victoria'** s case, it is relevant to refer to the decision rendered by this Court on 17.03.1997 in C.R.P.No.2587 of 1996 from which **Victoria** 's case arose. That was a revision filed by the decree holder in whose favour a decree for redemption of mortgage stood. Judgment debtors raised various contentions in defence including that they are tenants entitled to fixity of tenure under Sec.13 of the Act as the transaction is a lease and even otherwise they are entitled to fixity of tenure under Sec.4A(1)(b) of the Act. They also raised a claim that on redemption (of mortgage) they are entitled to the protection of kudikidappu under Explanation IV to Sec.2(25) of the Act. The trial court overruled the claim under Secs.13 and 4A(1)(b) of the Act based on the finding of the Land Tribunal on a reference. Trial court directed that the claim of kudikidappu raised by the defendants/judgment debtors under Explanation IV to Sec.2(25) of the Act be considered in execution. The decree of the trial court to that effect was confirmed in appeal and Second Appeal. Decree holder filed petition for execution to get back the documents and **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 14 possession of property on deposit of the mortgage money. In execution, judgment debtors claimed protection under Explanation IV to Sec.2(25) of the Act. That plea was accepted by the executing court and the question was referred to the Tribunal under Sec.125(3) of the Act. The order of the executing court referring the claim to the Tribunal was challenged by the decree holder in this Court in C.R.P.No.2587 of 1996. This Court referred to various decisions ## including **Narayanan v. Kunchi Amma Parukutty Amma (1986 KLT** ## **1340)** and **Vijayan v. Kamalakshmi Amma (1994 (1) KLT 942- SC)** and held that judgment debtors (in that case) having raised a claim of cultivating tenancy and that claim having been found against, the question of kudikidappu does not ''arise” for a decision in the executing court. It is seen from the order dated 17.03.1997 in C.R.P.No.2587 of 1996 that in that case, judgment debtors had raised a claim for fixity of tenure under Sec.13 of the Act and at any rate, under Sec.4A(1)(b) of the Act. Alternatively, a claim of kudikidappu on redemption (of mortgage) was also raised. I stated a little above that the claim of tenancy was referred to the Tribunal and found against but the trial court directed that the question regarding kudikidappu under Explanation IV to Sec.2 (25) of the Act be decided in the execution proceedings which the first appellate court and this Court confirmed in appeal and Second Appeal and it is thereafter that in execution judgment debtors raised the said claim of kudikidappu which question the executing court referred to the Tribunal. This Court after referring to various decisions including **Narayanan v. Kunchi Amma Parukutty** **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 15 ## **Amma** and **Vijayan v. Kamalakshmi Amma** stated in the order dated 17.03.1997 in C.R.P.No.2587 of 1996: “In the light of this pronouncement by the Supreme Court binding on this court, it has to be held that in a case where a person had approached the Land Tribunal with a claim that he was a cultivating tenant entitled to an assignment under Section 72B of the Act but had not chosen to put forward a claim for protection under Section 2(25) of the Act, he would be barred from raising the claim that he was a kudikidappukaran at a subsequent stage or in the subsequent litigation and his claim would be barred by the principle of 'might and ought'. The decision of the Supreme Court is also authority for the position that by choosing one of the pleas, a transferee can waive the benefit of another provision which might be attracted in his case.” **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 16 In paragraph 7 of the said order (in C.R.P.No.2587 of 1996) the contention of judgment debtors that while decree for redemption was passed by the trial court, the claim for protection under Explanation IV to Sec.2(25) of the Act was relegated to be decided in execution, hence the question did arise for a decision in execution and is to be referred to the Tribunal is dealt with. Learned Judge observed: “.............. 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 the decree, leaving it to be decided in 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 under Section 125(3) of the Act to the concerned Land Tribunal is mooted, the executing court has necessarily to decide the question whether the claim raised, arises for decision. If the executing court were to come to **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 17 the conclusion that the question does not arise for decision in view of the judgment debtor being barred by resjudicata actual or constructive, it would not be open for the 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”. 16. The decision rendered by this Court in C.R.P.No.2587 of 1996 is that in the circumstances stated above the executing court, notwithstanding that the trial court while passing the decree for redemption had relegated the claim of kudikidappu under Explanation IV to Sec.2(25) to be decided in execution, was not justified in referring the question to the Tribunal for the reason that the said question did not “arise” for a decision since on the trial side, the judgment debtors had sought benefit of fixity of tenure either under Sec.13 or under Sec.4A(1)(b) of the Act and that plea was found against. 17. It is pointed out by the learned Senior Advocate for petitioners that neither **Narayanan v. Kunchi Amma Parukutty Amma** nor **Vijayan** **v. Kamalakshmi Amma** relied on in C.R.P.No.2587 of 1996 related to a case of redemption of mortgage and hence, the question whether claim of kudikidappu could be raised at the time of redemption, ie. in the course of **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 18 execution in view of Explanation IV to Sec.2(25) of the Act did not arise for a decision in the said cases. It is pointed out by learned Senior Advocate that the decision in **Narayanan v. Kunchi Amma Parukutty Amma** (supra) concerned a suit for eviction of tenant, no mortgage was involved and hence the question of application of Explanation IV to Sec.2(25) of the Act did not arise. It is also pointed out that **Vijayan v. Kamalakshmi Amma** (supra) was a case of eviction from a building where also question of redemption of mortgage did not arise and hence Explanation IV to Sec.2(25) of the Act had no application. It is argued that hence no reliance could be made on the decisions in **Narayanan v. Kunchi Amma Parukutty Amma** and **Vijayan v.** **Kamalakshmi Amma** (supra) to contend, at any rate that where the trial court has relegated the question of kudikidappu under Explanation IV to Sec.2 (25) of the Act to be decided in execution, the said question does not “arise” for a decision. 18. I am unable to accept that contention notwithstanding that **Narayanan v. Kunchi Amma Parukutty Amma** and **Vijayan v.** **Kamalakshmi Amma** did not relate to suits for redemption of mortgage. Reason is that the order dated 17.03.1997 in C.R.P.No.2587 of 1996 of this Court (which concerned redemption of mortgage) referring to various decisions including **Narayanan v. Kunchi Amma Parukutty Amma** and **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 19 **Vijayan v. Kamalakshmi Amma** has been affirmed by the Supreme Court in **Victoria** 's case. In **Victoria** 's case the Supreme Court has extracted the relevant observations in the order dated 17.03.1997 in C.R.P.No.2587 of 1996, in paragraph 3 (of **Victoria** 's case) and affirmed it. This Court is bound to follow the decision in **Victoria** 's case. 19. In **Victoria** 's case, the decision of the Division Bench in **Balakrishnan v. Bhaskaran** – supra (that in a suit for redemption notwithstanding that the claim for kudikidappu was either not raised or raised but rejected earlier, could arise for a decision in the course of execution in view of Explanation IV to Sec.2(25) of the Act) was not approved as is seen from the observation in paragraph 4 (of **Victoria** 's case). The Supreme Court referring to the decision in **Balakrishnan v. Bhaskaran** held: “........... 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. .........” **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 20 It is contended by learned Senior Advocate for petitioners that the above is only an observation made by the Supreme Court. The said contention cannot be accepted in view of the fact situation arising in C.R.P.No.2587 of 1996 which I have extracted above. I must understand the decision in Victoria's case as related to the facts of that case which is similar to this case as well. 20. Learned Senior Advocate, Shri A.P.Chandrasekharan has raised a contention on behalf of respondent that protection under Explanation IV to Sec.2(25) of the Act is available only to the mortgagee personally and not to his legal representatives. Learned Senior Advocate has referred me to Explanation IV to Sec.2(25) of the Act to buttress his contention that it is a privilege given to the mortgagee personally and not to his legal representatives. I am afraid, that contention cannot be accepted as a wide proposition, for, a legal representative is none but the persona of the deceased. Therefore, if the law does not otherwise disentitle the legal representatives for any reason whatsoever, there is nothing which prevents the legal representatives of the mortgagee claiming protection under Explanation IV to Sec.2(25) of the Act. 21. In this case, Karuppan @ Appunni had raised only a plea of fixity of tenure under Sec.13 of the Act and that was found against by this Court in S.A.No.787 of 1988. It is immaterial and irrelevant that Karuppan @ Appunni had not claimed protection under Sec.4A(1)(b) of the Act and that was found against. It is relevant to note that Karuppan had not raised a claim of **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 21 kudikidappu. Though, the learned Sub Judge while deciding A.S.No.50 of 2003 held that the “vested right of kudikidappu” of petitioners can be raised in execution, as this Court held in the order dated 17.03.1997 in C.R.P.No.2587 of 1996 and as affirmed in **Victoria** , that was not a recognition of the right of petitioners for entitlement of kudikidappu but all that was done by learned Sub Judge was only to permit petitioners raise the question in the course of execution. Still the question whether that plea “arises” for a decision was required to be determined by the executing court. In view of the Order dated 17.03.1997 in C.R.P.No.2587 of 1996 of this Court which is affirmed by the Supreme Court in **Victoria** 's case, the contention that because learned Sub Judge while deciding A.S.No.50 of 2003 arising from the final decree has relegated the plea of kudikidappu raised by petitioners to be decided in execution, it cannot be said that the said question “arises” for a decision since as aforesaid, karuppan @ Appunni had not raised any such plea in the suit; instead, he only raised a plea of fixity of tenure under Sec.13 of the Act and that was found against. Therefore, I am to hold, in the light of the decision in **Victoria** 's case that the mortgagee having raised a plea of fixity of tenure under Sec.13 of the Act and invited an adverse decision, neither he nor his legal representatives could, in the execution proceeding claim protection of Explanation IV to Sec.2(25) of the Act. The executing court was therefore right in passing Ext.P4, order and refusing to refer the plea of kudikidappu to the Tribunal. **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 22 22. Coming back to the civil revisions filed by the petitioners, they, during pendency of proceedings in the civil court directly approached the Tribunal claiming protection of kudikidappu under Explanation IV to Sec.2(25) of the Act. The Tribunal found that since Karuppan @ Appunni was only a mortgagee, the question of petitioners claiming kudikidappu did not arise. That was confirmed by the Appellate Authority. The said orders are under challenge in the civil revisions. 23. While referring to Ext.P4, order in O.P.(C) No.2742 of 2011, I found that the executing court, in view of the decision in **Victoria** 's case was justified in holding that the claim of petitioners for protection under Explanation IV to Sec.2(25) of the Act does not ''arise''. For the said reason, the claim made by petitioners before the Tribunal cannot be accepted. Moreover, the Tribunal could not have entertained the proceeding when the matter was pending decision of the civil court, for, the Tribunal was bound to await decision of the civil court in the matter. 24. Apart from the house constructed by the mortgagee – Karuppan @ Appunni, it would appear that one of his sons constructed another house also in the suit property in respect of which also a claim of kudikidappu under Explanation IV to Sec.2(25) of the Act was raised. There is no question of either the mortgagee or his legal representatives claiming kudikidappu either under Explanation IV to Sec.2(25) or any other provision of the Act in respect of a **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 23 second house since when a claim is made in respect of a second house, one “homestead” is already in existence. For the above said reasons, there is no reason to interfere with the order passed by the Tribunal and the Appellate Authority in the independent proceedings initiated at the instance of petitioners. 25. The result of my above discussion is that the executing court is justified, in view of the decision in Victoria's case in holding that the claim raised by petitioners for protection of kudikidappu under Explanation IV to Sec.2(25) of the Act does not “arise” for a decision and hence that question was not required to be referred to the Tribunal. 26. Learned Senior Advocate for petitioners has requested time to take up the matter before the Supreme Court. It is submitted that pursuant to the decision of this Court, petitioners may be evicted from the houses in question at any time. It is therefore, requested that the execution proceedings may be kept in abeyance for some time. Having heard learned Senior Advocates on both sides I am inclined to allow that request. In the result, i. O.P.(C)No.2742 of 2011 is dismissed. But, it is directed that proceedings in E.P.No.139 of 2008 in O.S.No.67 of 1980 of the court of learned Munsiff, Parappanangadi will stand in abeyance upto a period of one month from **OP(C)No.2742/2011 & CRP Nos.248 & 249/2011** 24 the date on which a copy of this judgment is notified to be delivered to the petitioners or till the Supreme Court passes appropriate orders in the matter, whichever is earlier. ii. C.R.P.Nos.248 of 2011 and 249 of 2011 are dismissed. All pending interlocutory applications are dismissed. **THOMAS P.JOSEPH, Judge.** **cks**