1978 (8) TMI 226 - HC - Indian Laws

Summary

Issues Involved:
1. Whether execution proceedings can be regarded as a continuation of the suit.
2. Whether the judgment in A.S. No. 164 of 1971 is final and conclusive.
3. Applicability of Section 125 of the Kerala Land Reforms Act.
4. Whether the judgment in S.A. No. 916 of 1969 operates as res judicata.
5. Whether the proviso to Section 125(1) applies to exclude the operation of the section.

Issue-wise Detailed Analysis:

1. Whether execution proceedings can be regarded as a continuation of the suit:
The court considered whether execution proceedings initiated after the suit was decreed should be regarded as pending proceedings. The court referenced the Supreme Court decision in Eapen Chacko v. Provident Investment Co. (P) Ltd. and noted conflicting decisions, including Raman Nayar J.'s decision in New Model Bank Ltd. v. P. A. Thomas. The court concluded that execution proceedings are separate from the suit, and the applicability of Section 125 should be judged with special reference to the proceedings in question.

2. Whether the judgment in A.S. No. 164 of 1971 is final and conclusive:
Counsel for the appellant argued that the judgment in A.S. No. 164 of 1971, which directed the matter to be decided by the execution court, was final and conclusive. The court found that the judgment did not preclude the respondent from raising the question of tenancy under the amended Act. The court emphasized that the judgment should be read in light of the statutory mandate to dispose of proceedings in accordance with the amended Act (Section 108(3) of the Land Reforms Act).

3. Applicability of Section 125 of the Kerala Land Reforms Act:
The court examined Section 125, which bars civil courts from deciding matters required to be determined by the Land Tribunal. The court found that the execution court was not precluded by the judgment in A.S. No. 164 of 1971 from referring the matter to the Land Tribunal. The court also rejected the plea of waiver, stating that the omission to urge a reference to the Land Tribunal did not amount to a waiver of the right.

4. Whether the judgment in S.A. No. 916 of 1969 operates as res judicata:
The appellant contended that the judgment in S.A. No. 916 of 1969, which held that the defendant was not entitled to fixity of tenure, should operate as res judicata. The court found that the earlier decision did not preclude the respondent's claim of tenancy under the amended Act, as the amendments introduced new rights and a new forum for adjudication. The court also noted that the question of tenancy under Section 7-B of the amended Act had not been decided in the earlier judgment.

5. Whether the proviso to Section 125(1) applies to exclude the operation of the section:
The appellant argued that execution proceedings are a continuation of the suit and should be exempt under the proviso to Section 125(1). The court held that execution proceedings are separate and independent from the suit, and the pendency of proceedings must be judged with reference to the specific proceedings in question. Since the execution petition was filed after the commencement of Act 35 of 1969, the proviso to Section 125(1) did not apply.

Conclusion:
The court dismissed the appeal, upholding the lower appellate court's decision to remand the matter for investigation in light of Section 125 of the Kerala Land Reforms Act. The court found no grounds to interfere with the judgment under appeal. The appeal was dismissed with costs.