IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 SA.No. 831 of 1996(G) ---------------------------------- AS.611/1994 of SUB COURT,NEYYATTINKARA OS.213/1986 of IIND ADDITIONAL MUNSIFF COURT, NEYYATTINKARA .................... APPELLANT(S): APPELLANTS/DEFENDANTS ---------------------------------------------------------------- 1. K.THANKAPPAN, SPINNING MILL, THIRUVANANTHAPURAM RESIDING AT CHANTHAPERUMARIYA, VALIA VILAKATH VADAKKE VEEDU, ATHIYANNOOR DESOM, DO. PAKUTHY. 2. RAJAMMA SANTHA, RESIDING DO. DO. BY ADVS. SRI.P.R.VENKETESH SRI.P.R.RAJA RESPONDENT(S): RESPONDENT/PLAINTIFF ---------------------------------------------------------------- *SUBHAMMAL GEETHA, RESIDING AT VANDAZHANINNA PUTHUVAL PUTHEN VEEDU, ATHIYANNOOR DESOM, DO. PAKUTHY * (DIED). *ADDL. R2 & R3 IMPLEADED 2. PERUMAL , TEACHER, HIGHER SECONDARY SCHOOL, VALLIYOOR, THIRUNELVELI (DISTRICT), TAMIL NADU. 3. VISHNU, S/O. PERUMAL, VANDAZHANINNA PUTHUVAL PUTHENVEEDU, ATHIYANNOOR DEOSM, DO. PAKUTHY. *LEGAL REPRESENTATIVES OF THE DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 2 AND 3 AS PER ORDER DTD. 27.10.97 IN CMP. 1485/1997. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE BY ADV. SRI.SINDHU MANOJ THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.1789/1996 IN SA. NO.831/1996 CLOSED 30/03/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE tss P.BHAVADASAN, J. ------------------------------------- SA No.831 of 1996 ------------------------------------- Dated this the 30th day of March 2011 Judgment In a suit for redemption of mortgage evidenced by Ext.A1 document dated 27.04.1968, the defendants set up a plea of kudikidappu. The trial court after finding that the mortgage can be redeemed, relegated the question of consideration of kudikidappu to the execution stage. In appeal by the defendants in the suit, the said finding was confirmed. 2. The learned counsel for the appellants in this second appeal raised for consideration the issue that the courts below could not have relegated the question of kudikidappu to the execution stage. If as a matter of fact, it was found that the plea of kudikidappu does arise for consideration, the trial court was obliged under Section 125(3) of the Kerala Land Reforms Act, to relegate the matter to the Land Tribunal concerned and that has not been done and so, the judgments and decree of the courts below are clearly unsustainable in law. 3. The learned counsel for the respondent could not dispute the proposition that the issue regarding kudikidappu has to be considered at the trial stage itself. But the learned counsel pointed out that the courts below have to be satisfied that the issue of kudikidappu does arise for SA 831/96 2 consideration and then alone, reference was called for. 4. Both the courts below have held that the question of kudikidappu can be decided at the execution stage. That obviously is not possible in view of the decisions reported in Raju v. Soman (1995(1) KLT 222), Thomas Antony v. Varkey Varkey (2000) 1 SCC 35), Prabhavathi v. Narayani Amma (2007(2) KLT SN 20(Case No.30) and Abubacker v. Kadija Ummal (2007(2) KLT 807). The principle laid down in the above decisions leaves one in no doubt that the act of the trial court in relegating the matter to be decided at the execution stage, cannot have support in law. However, it does not mean that the mere fact that a plea of kudikidappu has been raised, automatic reference is called for. The trial court will have to satisfy that the issue of kudikidappu does arise for consideration. The result is that the judgment and decree of the courts below are unsustainable in law and they are liable to be set aside. Accordingly, this appeal is allowed. The judgment and decree of the courts below are set aside and the matter is remanded to the trial court to consider the question as to whether the issue of kudikidappu arises for consideration and if it arises for consideration, to relegate the matter to the Land Tribunal concerned under Section 125(3) of the Kerala Land Reforms Act. P.Bhavadasan, Judge SA 831/96 3 sta SA 831/96 4