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Case Number

E.S.A 59 of 1976

Attorney(S)

For the Appellant: C.S. Ananthakrishna Iyer

Judges

Gopalan Nambiyar, C.J
Bhaskaran
Chandrasekhara Menon, JJ.

Acts

Act 1 of 1964 as amended by Act 35 of 1969 and Act 25 of 1971
required.5. S. 108(3) of the Land Reforms Act,
provisions of the Kerala Land Reforms Act.
Kerala Land Reforms (Amendment) Act, 1969.(2)
KERALA LAND REFORMS AMENDMENT ACT
S. 171 of the Indian Companies Act, 1913,
S. 4 of the Cochin Varumpattomdars Act,
Section 125 of the Land Reforms Act,
S. 125 of the Land Reforms Act:125.
Act 35 of 1969 and Act 25 of 1971
S. 3(1)(vi) of the Land Reforms Act,
Act 35 of 1969 and 25 of 1971,
S. 13 of the Land Reforms Act
provisions of Act 35 of 1969,
Rent Control) Act, 1965.3.
Land Reforms Act,
Section 7-B.

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Smart Summary

Structured Summary of the Opinion — Gopalan Nambiyar, C.J.

Factual and Procedural Background

This appeal arises from execution proceedings and was referred to a Full Bench because of important questions involved. The underlying civil suit was O.S. 559 of 1960 on the file of the Wadakkencherry Munsiff's Court in which the decree-holder is the appellant in this second appeal. The suit, as a reversioner of a limited owner, sought recovery of possession; the defendant claimed fixity of tenure under the proviso to S.3(1)(vii) of the Land Reforms Act by relying on the Cochin Varumpattemdars Act.

Procedural timeline as reflected in the opinion:

The suit was decreed on 7-2-1964.
An appeal was dismissed on 15-2-1965; S.A. No. 916 of 1965 (later reported as Cheru Vareed v. Chakunny) was dismissed by a Division Bench on 20-8-1969 (reported as 1970 KLT. 39 / 739), holding the defendant not entitled to fixity.
Execution petition E.P. No. 143 of 1971 was filed on 10-8-1971; delivery was taken on 18-8-1971.
A.S. No. 164 of 1971 was filed against the order directing delivery. By that time the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969) had come into force on 1-1-1970, and later amendments (including Act 25 of 1971) further amended the Land Reforms Act and introduced Section 7-B (dealing with “deemed tenants”).
By judgment dated 2-10-1973, A.S. No. 164 of 1971 was allowed and the execution court was directed to consider the respondent's claim of tenancy under the amended Act. Subsequent proceedings included remand(s) and conflicting findings on whether the question of tenancy must be referred to the Land Tribunal under S.125(3).
The lower appellate court ultimately allowed the appeal against the execution court's finding and directed that the question of tenancy be referred to the Land Tribunal under S.125(3). The present second appeal challenges that judgment.

Legal Issues Presented

Whether the earlier judgment in A.S. No. 164 of 1971 (and related prior final orders) operates as a bar by finality or res judicata to prevent the respondent from raising the question of tenancy under the amended Land Reforms Act.
Whether omission to request a reference to the Land Tribunal in the execution proceedings (after prior judgments) amounts to a waiver of rights under S.125(3) of the Land Reforms Act.
Whether a civil court's decision on tenancy without referring the question to the Land Tribunal (when S.125 requires referral) amounts to a jurisdictional nullity or only an irregularity/illegality that an appellate court may or may not correct.
Whether the proviso to S.125(1) (which preserves proceedings pending at the commencement of the Amendment Act 35 of 1969) applies to execution proceedings started after 1-1-1970 — i.e., whether execution proceedings commenced after that date are to be treated as continuations of a suit pending prior to that date for the purpose of the proviso.
Whether the exemption in S.3(1)(vi) (leases by limited owners) prevents the operation of the subsequently-introduced S.7-B (deemed tenancy) on leases granted by a limited owner.

Arguments of the Parties

Appellant's Arguments

The judgment in A.S. No. 164 of 1971, having become final and directing consideration by the execution court, precludes the respondent from now contending that the question of tenancy should be referred to the Land Tribunal; that judgment is final and conclusive (invoking rules of finality and res judicata under S.105(2) CPC and general res judicata principles).
The appellant submitted that he had submitted to the direction of the earlier judgment and had not raised before the execution court (after remand) or in his grounds of appeal that the Land Tribunal alone should deal with the question; this omission amounted to waiver of rights under S.125(3).
The proviso to S.125(1) preserves proceedings pending at commencement of Act 35 of 1969; because the suit had been instituted and decreed (and second appeal disposed of) prior to the commencement of Act 35 of 1969, execution proceedings are merely a continuation of the suit and thus excluded from S.125(1) by the proviso.
The earlier Division Bench decision in S.A. No. 916 of 1969 (1970 KLT. 739 / Cheru Vareed) which found the defendant not entitled to fixity operates as res judicata and therefore the question of tenancy would not “arise” within S.125(3) so as to require referral to the Land Tribunal.
Under S.3(1)(vi) leases granted by a limited owner are exempt from Chapter II; therefore S.7-B cannot operate without a corresponding amendment to S.3(1)(vi).

Respondent's Arguments

The execution proceedings are separate and independent proceedings; what matters for S.125 is whether the proceedings in relation to which the question arises were pending at the commencement of Act 35 of 1969 — the execution proceedings here were initiated after 1-1-1970 and therefore the proviso to S.125(1) does not apply.
New statutory rights and provisions (notably Section 7-B introduced by Act 35 of 1969 and subsequent amendments) had come into force after the earlier decisions; questions of tenancy arising under the amended statute must be referred to the Land Tribunal under S.125(3).
Both the question of the applicability of the exemption in S.3(1)(vi) and the plea of fixity arising under S.7-B should be referred to the Land Tribunal (relying on precedents such as Lissy v. Kuttan and Narayana Menon v. Kallandi).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Eapen Chacko v. Provident Investment Co. (P.) Ltd. (1977 KLT. 1)	Referenced regarding whether an execution proceeding can be regarded as a continuation of the suit (i.e., whether it counts as a "pending proceeding").	The Single Judge had noted that the decision gave no clear indication on that point; the Full Bench recorded that observation but relied on other statutory and precedential analysis for its conclusions.
New Model Bank Ltd. (In Liquidation) v. Thomas (AIR 1960 Kerala 243)	Judicial observations on the relation between execution/continuation and the principal suit (as cited by one side).	The opinion notes Raman Nayar J.'s observations as being in a different direction from other cited authorities; the Court considered that divergence when referring the matter earlier but relied on statutory construction in its ultimate conclusion.
Cheru Vareed v. Chakunny (reported in the opinion as 1970 KLT. 39 / 739)	Held that the defendant was not entitled to fixity of tenure on the issues considered at that time (decision prior to Acts 35 of 1969 and 25 of 1971).	The appellant relied on this as res judicata. The Court held, however, that that decision antedated the amendments (S.7-B) and therefore did not operate as res judicata against rights created by subsequent legislation.
Alavi v. Radha Varasyaramma (1976 KLT 691) (Full Bench)	Held that a judgment or order passed without compliance with S.125(4) and (5) is not a nullity and cannot be ignored as void (distinguishing jurisdictional nullity from irregularity/illegality).	The Court cited this Full Bench authority when considering whether the defect of failing to refer to the Land Tribunal was jurisdictional or merely an irregularity; it declined to adopt or reject the authority definitively but treated correction by appellate court as open and found no ground to interfere in second appeal.
Ananthanarayana Iyer v. Paran (1976 KLT 403)	Earlier Full Bench observations relevant to the consequences of non-compliance with statutory referral provisions.	Used in the opinion to contextualize the Alavi ruling and the consequences of non-compliance with S.125 procedural requirements.
Lissy v. Kuttan (1966 KLT. 571 — Full Bench) (also cited as 1976 KLT. 571-F.B. in the opinion)	Establishes that questions within S.125(3) should be referred to the Land Tribunal; supports that exemption and fixity issues are matters for the Tribunal.	The Court accepted the principle from Lissy (and related Narayana Menon precedent) that questions of applicability of exemptions and claims of fixity must be referred to the Land Tribunal under S.125(3).
George v. Chakkunni (1977 KLT. 865)	Supports the proposition that a matter barred by res judicata cannot be said to "arise" for determination so as to require a reference under S.125(3).	The Court acknowledged this authority as supporting the proposition that res judicata prevents a question from 'arising' for referral, but held the earlier decision did not cover rights that came into existence after that decision.
Govindan Gopalan v. Raman Gopalan (1978 KLT. 315) (Full Bench)	Where a question of tenancy had been decided by the Land Tribunal, the same cannot be said to 'arise' again for reference under S.125(3).	Cited in support of the general proposition regarding res judicata and prior Land Tribunal determinations; applied to show that where a question was previously decided it need not be referred again, but distinguishing facts where new statutory rights have arisen.
N. Krishna Pillai v. State Bank of Travancore (1967 KLT. 188)	Authority cited for the proposition that non-obstante clauses (and similar statutory provisions) do not necessarily override fundamental doctrines such as res judicata or lis pendens.	Cited by counsel for appellant to argue non-obstante provisions do not eliminate res judicata/lis pendens; the Court noted the reliance but distinguished it on facts where statutory amendments introduced new rights.
Mohamed Mytheen v. Sreedharan (1976 KLT. 188) and (1976 KLT. 919 — Full Bench)	Full Bench authority treated as binding on matters concerning lis pendens and related principles.	Cited to support propositions about lis pendens and the limits on non-obstante clauses; the Court acknowledged the binding character of Full Bench rulings on lis pendens.
Narayana Menon v. Kallandi (1973 KLT. 983)	Earlier ruling endorsing the principle that questions falling within S.125(3) should be referred to the Land Tribunal.	Relied upon (via subsequent Full Bench authority) to support the respondent's submission that issues of exemption and fixity must be referred to the Land Tribunal; the Court accepted that position.
Governor-General in Council v. Shiromani Sugar Mills Ltd. (AIR (33) 1946 Fed. Court 16)	Interpreted the scope of "legal proceedings" under S.171 of the Indian Companies Act, holding that distress and execution proceedings fall within "other legal proceedings."	The opinion cited this authority to illustrate that execution and similar processes can be comprehended within broad statutory expressions such as "legal proceedings"; the Court used it in analysing whether execution proceedings were `pending` for the purpose of statutory provisos.
S.V. Kondaskar v. V.M. Deshpande, Income-tax Officer, Companies Circle ((1972) 1 SCC 438 : AIR 1972 SC 878)	Qualification of the broad construction of "legal proceedings" by excluding certain proceedings (example: income-tax assessment) from that scope.	Cited to show that even broad interpretations of "legal proceedings" may be qualified and to underscore the need to relate construction to the scheme of the particular statute (here, the Land Reforms Act).
1923 A.C. 647 (speech of Lord Wrenbury cited in Governor-General case)	Referenced in the Governor-General decision concerning the concept of creditors "outside the winding up" and the breadth of proceedings covered.	Referred to within the Governor-General decision as part of reasoning about the scope of proceedings against company property; used indirectly in the Court's reasoning on the meaning of "proceedings" for statutory purposes.

Court's Reasoning and Analysis

The Court proceeded by addressing each contention in turn, applying statutory provisions and precedents quoted in the opinion:

On finality / res judicata arising from A.S. No. 164 of 1971:
- The Court examined the terms of the earlier A.S. No. 164 order and found that the remand had directed consideration of the question of tenancy in the light of Act 1 of 1964 as amended by Act 35 of 1969 and Act 25 of 1971. Consequently, the earlier order did not preclude the execution court from dealing with the matter in the light of the amendments and from referring the question to the Land Tribunal if required by the statute.
- The Court rejected the submission that the earlier judgment created a conclusive bar under res judicata or S.105(2) CPC to the respondent raising the tenancy question under the amended statute.
On statutory mandate to apply amended law:
- The Court quoted S.108(3) of the Land Reforms Act (as amended) which directs that pending suits, appeals, proceedings in execution, etc., in which persons claim benefits under the amended Act, shall be disposed of in accordance with the provisions of the principal Act as amended.
- On that basis, the Court held there was a statutory mandate to consider the matter under the amended Act and that the earlier judgment did not prevent raising the tenancy question under the amended law.
On waiver:
- The Court observed that given the complexity and recentness of the amendments when the execution court disposed of the matter, mere omission to urge before the execution court that a reference be made would not, in that context, amount to a waiver of rights under S.125(3).
On whether non-referral was jurisdictional or merely irregular:
- The Court discussed authorities (including Alavi v. Radha Varasyaramma and related Full Bench decisions) recognizing a distinction between jurisdictional defects and irregularities. The Court declined to finally endorse or repudiate those authorities but noted that whether a defect is jurisdictional or merely irregular, correction by an appellate court is open; and in the circumstances of new statutory rights and a new forum (the Land Tribunal), remand was justified.
On res judicata with respect to earlier decision in S.A. No. 916 / 1970 KLT. 739:
- The Court accepted that where a question had been finally decided earlier, it could not be said to “arise” again for referral to the Land Tribunal. However, the Court held that the earlier decision had addressed whether the respondent was entitled to fixity under S.13 by reason of claims under the Cochin Varumpattomdars Act prior to the amendments; it was rendered prior to Acts 35 of 1969 and 25 of 1971 which introduced Section 7-B and other substantial amendments.
- Accordingly, the decision in 1970 KLT. 739 could not be treated as res judicata against claims of rights which arose only after those legislative amendments.
On the applicability of S.3(1)(vi) exemption and the requirement of reference:
- The appellant's argument that S.3(1)(vi) exempts leases by limited owners from Chapter II and thus prevents S.7-B from operating was met by the respondent's submission that the applicability of that exemption and the plea of fixity must be referred to the Land Tribunal under S.125(3). The Court accepted the respondent's position, relying on Lissy v. Kuttan and Narayana Menon v. Kallandi, and directed that these questions are matters for the Tribunal.
On whether execution proceedings were "pending" at commencement of Act 35 of 1969 (proviso to S.125(1)):
- The Court analysed the meaning of "proceedings" and cited precedents that adopt a broad view of "legal proceedings" to include execution. However, the Court emphasized that the pendency must be judged with special reference to the proceedings in relation to which S.125's applicability is considered.
- Because the execution petition E.P. No. 143 of 1971 was filed only on 10-8-1971 and delivery occurred on 18-8-1971 (after 1-1-1970), the Court concluded the execution proceedings were not pending at the commencement of Act 35 of 1969; therefore the proviso to S.125(1) did not apply.
Conclusion of analysis:
- Given the new statutory provisions, the timing of the execution proceedings, and the authorities considered, the Court found no ground to interfere with the lower appellate court's direction to remand and to refer relevant questions (including fixity and applicability of exemptions) to the Land Tribunal under S.125(3).

Holding and Implications

Holding: THE APPEAL IS DISMISSED.

Implications and direct effects:

The judgment of the lower appellate court directing that the question of tenancy (including the applicability of exemptions such as S.3(1)(vi) and the claim under S.7-B) be referred to the Land Tribunal under S.125(3) is upheld and stands; the execution court must comply with the statutory referral procedure.
The proviso to S.125(1) (which preserves proceedings pending at commencement of Act 35 of 1969) was held inapplicable because the execution proceedings were initiated after 1-1-1970.
The Court found that prior decisions rendered before the amendments (including the decision reported at 1970 KLT. 739) do not operate as res judicata to bar claims that arose by force of statutory amendments introduced subsequently (notably S.7-B). Thus rights arising from subsequent legislation may be raised notwithstanding earlier final orders on different legal bases.
No express new legal precedent was declared beyond the application of existing statutory provisions and precedents to the particular facts; the direct consequence is the remand and referral for Land Tribunal adjudication, and the appeal is dismissed with costs.

This summary is prepared solely from the content of the provided opinion and does not add information beyond what appears in that text.

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George v. Vareed

The Judgment of the Court was delivered by

Gopalan Nambiyar, C.J:— This appeal arises in execution and has been referred to a Full Bench in view of the importance of the questions involved. The Division Bench has not stated the points of importance. The learned Single Judge who referred the case to a Division Bench referred to the decision of the Supreme Court in Eapen Chacko v. Provident Investment Co. (P.) Ltd., (1977 KLT. 1) and observed that the decision gave no indication as to whether an execution proceeding can be regarded as a continuation of the suit so as to make it a pending proceeding in a case where the suit was decreed prior to 1-1-1970, (the relevant date for the purposes of this case), and the execution commenced after that date. The learned Judge referred to a number of decisions as having been cited by Counsel in support of the contention that although the suit was itself decreed prior to 1-1-1970 the execution proceeding had to be regarded as pending even if initiated only after that date. As against this, the learned Judge noticed the decision of Raman Nayar, J. of this Court cited on the other side, in New Model Bank Ltd. (In Liquidation)…Plaintiff;* v. Thomas…Defendant. (AIR 1960 Kerala 243), where the learned Judge's observations sound in a different direction. It was in view of this that the reference was made to a Division Bench.

2. The decree-holder in O.S 559 of 1960 on the file of the Wadakkencherry Munsiff's Court is the appellant in this Second Appeal. The suit was as a reversioner of a limited owner, for recovery of possession of an item of property on title. The defendant claimed fixity of tenure under the proviso at the end of S. 3(1)(vii) of the Act, to the effect that nothing in clauses (1) to (vii) shall apply to persons who were entitled to fixity of tenure immediately before 21st January 1961 under any law then in force. His contention was that he was entitled to fixity of tenure under the Cochin Verumpattemdars Act 1118 M.E Overruling the contention the suit was decreed on 7-2-1964. An appeal against the decision was dismissed on 15-2-1965; and S.A No. 916 of 1965 was also dismissed by a Division Bench of this Court on 20-8-1969. (vide Cheru Vareed v. Chakunny (1970 KLT. 39). This Court held that the defendant was not entitled to fixity. E.P No. 143 of 1971 for execution was filed on 10-8-1971 and delivery was taken on 18-8-1971 (without notice, as provided in the Civil Procedure Code). A.S No. 164 of 1971 was filed against the order directing delivery of possession. By that time the Kerala Act 35 of 1969 had come into force on 1-1-1970. It had effected substantial amendments to the provisions of the Kerala Land Reforms Act. Among them was the introduction of a new Section dealing with “deemed tenants” viz. Section 7-B. The provision stated that any person in occupation of the land of another on the date of commencement of Act 33 of 1969 on the basis of a registered deed purporting to be a lease deed shall be deemed to be a tenant, if be or his predecessor was in occupation on 11th April 1957 on the basis of the deed, despite the fact that the lease was by a person who had no right over the land or was not competent to grant the same. By judgment dated 2-10-1973, A.S No. 164 of 1971 was allowed, and the execution court was asked to consider the respondent's claim of tenancy under the amended Act. It considered and negatived the claim on appeal, the appellate court remanded the matter back to the execution court holding that in view of the provisions of Act 35 of 1969, and in particular of the amendments effected by it to Section 125 of the Land Reforms Act, the question whether the defendant is a tenant under Act 1 of 1964 or not had to be referred for decision of the Land Tribunal After this remand, the execution court again ruled that the defendant was not entitled to fixity and that he is bound to deliver possession. On appeal, the lower appellate court allowed the appeal and vacated the finding of the execution court and directed the execution court to refer that question for decision to the concerned Land Tribunal under S. 125(3) of the Act. This appeal is against the said judgment. We quote S. 125 of the Land Reforms Act:

“125. Bar of jurisdiction of civil courts. (1) No civil court shall have jurisdiction to settle, decide, or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Land Tribunal or the appellate authority or the Land Board or the Taluk Land Board or the Government or an officer of the Government:

Provided that nothing contained in this sub section shall apply to proceedings pending in any court at the commencement of the Kerala Land Reforms (Amendment) Act, 1969.

(2) No order of the Land Tribunal or the appellate authority or the Land Board or the Taluk Land Board or the Government or an Officer of the Government made under this Act shall be questioned in any civil court, except as provided in this Act.

(3) If in any suit or other proceeding any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or of a kudikidappukaran) arises, the civil court shall stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question only.

(4) The Land Tribunal shall decide the question referred to it under sub-section (3) and return the records together with its decision to the civil court.

(5) The civil court shall then proceed to decide the suit or other proceedings accepting the decision of the Land Tribunal on the question referred to it.

(6) The decision of the Land Tribunal on the question referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the civil court.

(7) No civil court shall have power to grant injunction in any suit or other proceeding referred to in sub-section (3) restraining any person from entering into or occupying or cultivating any land or kudikidappu or to appoint a receiver for any property in respect of which a question referred to in that sub-section has arisen, till such question is decided by the Land Tribunal and any such injunction granted or appointment made before the commencement of the Kerala Land Reforms (Amendment) Act, 1969, or before such question has arisen, shall stand cancelled.

(8) In this section, “civil court” shall include a Rent Control Court as defined in the Kerala Buildings (Lease and Rent Control) Act, 1965.

3. Counsel for the appellant argued that in view of the judgment in A.S No. 164 of 1971 which had become final and conclusive, it was not open to the Respondent to contend, or to the lower appellate court to find, that the question of tenancy should be referred for decision to the Land Tribunal. The judgment referred, had directed the matter to be decided by the execution court; and the appellant bad submitted to that decision; and had not raised either before the execution court after remand, or in his grounds of appeal against its decision that the Land Tribunal alone should have dealt with the question of tenancy. To the bar of finality arising from the judgment in A.S No. 164 of 1971 was added a plea of waiver of the rights under S. 125(3). Next, it was urged that S. 125(3) had no application, as the proviso to S. 125(1) had expressly exempted proceedings pending at the commencement of Act 35 of 1969. Finally, it was argued that the Division Bench ruling in Cheru Vareed's case (1970 KLT. 739) had found that the defendant was not entitled to fixity; and the said finding must operate as res judicata, with the result that no question of tenancy would ‘arise’ within the meaning of S. 125(3) for being referred for determination by the Land Tribunal. We shall proceed to examine these contentions.

4. First as to the bar of finality of the judgment in A.S No. 164 of 1971. That judgment in paragraph 2 referred to the amendments effected by Act 35 of 1969 and Act 25 of 1971 and observed that it would be improper to go into the question whether the defendant would be a tenant within the amended definition and the matter will have to be considered by the execution court. The order recording delivery was set aside and the court directed to consider whether the defendant was a tenant under Act 1 of 1964. We entertain no doubt that properly read and understood, this order of remand directed consideration of the question of tenancy in the light of Act 1 of 1964 as amended by Act 35 of 1969 and Act 25 of 1971 Bar of finality and conclusiveness of this judgment is urged with respect to S. 105(2) of the Code of Civil Procedure; and on the general principles of res judicata. We do not think that the respondent is in any way precluded by this judgment. We have explained the true scope and effect of the judgment. On its own terms, it would not preclude the execution court from dealing with the matter in the light of the amendments, and referring the mater to the Land Tribunal if the provisions of the Statute so required.

5. S. 108(3) of the Land Reforms Act, as amended by the Act 35 of 1969 and 25 of 1971, in so far as is relevant, reads:

“108(3) if in any suit, application, appeal, revision, review, proceedings in execution of a decree or other proceedings pending at the commencement of this section before any court, tribunal, officer or other authority, any person claims any benefit, right or remedy conferred by any of the provisions of the principal Act or the principal Act as amended by this Act, such suit, application, appeal, revision, review, proceedings in execution or other proceedings shall be disposed of in accordance with the provisions of the principal Act as amended by this Act.”

6. There is thus a statutory mandate to dispose of in accordance with the provision; of the amended Act. We do not think that the judgment in A.S No. 164 of 1971 either on its terms and scope, or read in the light of S. 108(3), would preclude the respondent from raising the question of tenancy as for the plea of waiver, we do not think that in the region of the provisions of a complicated statute of the type of the Land Reforms Act, and the recent nature of the amendments effected, so closely prior to the disposal by the execution court, that the mere omission to urge before the execution court to make a reference to the Land Tribunal would amount to a waiver of the right.

7. It was contended that even if the judgment in A.S No. 164 of 1971 would not be a bar against urging that the question of tenancy should he settled only by the Land Tribunal, an actual decision on the question by the civil court, without reference to the Tribunal, would at best, be only an irregularity or illegality, and not one without jurisdiction; so that, the interest of justice did not require the appellate court to set aside the judgment of the execution court. As authority for the proposition that the defect was only an illegality or irregularity and not one of a jurisdictional nature, Counsel cited the judgment of a Full Bench of this Court in Alavi v. Radha Varasyaramma (1976 KLT 691). The Full Bench, after explaining the observations of a prior Full Bench in Ananthanarayana Iyer v. Paran (1976 KLT 403) and in Lissy v. Kuttan (1966 KLT. 571—FB) held that the judgment or order of a court or other proceeding passed without compliance with the provisions of S. 125(4) and (5) is not a nullity and cannot be ignored as void. We guard over selves against being understood as having either endorsed this opinion or as having expressed ourselves on the point. Whether it was a jurisdictional defect or a procedural illegality or irregularity, in either case, correction by an appellate court was open; it is generally,—especially in the latter case—, only where the defect complained of has occasioned a failure of justice (vide the principle of Ss. 21 & 99 of the C.P.C). We are not prepared to say, in second appeal, that the discretion exercised by the lower appellate court in remanding the proceedings was unsound. New rights had intervened, and a new forum of adjudication had been provided which justified the remand. We see no ground to interfere in second appeal.

8. It was then urged that in S.A No. 916 of 1969 (1970 KLT 739) this Court has held that the lease in question was exempt under S. 3(1)(vi) of the Act, as a lease granted by a person having only a life interest or other limited interest, and as not saved by the proviso to S. 3(1)(vii) of the Act. This finding, it was said, had become res judicata, and therefore a question of tenancy would not ‘arise’ for determination so as to be referred for decision by the Land Tribunal under S. 125(3) of the Act. For this latter proposition that a question which has been barred by res judicata cannot be said to ‘arise’ within S. 125(3), reliance was placed on a decision of one of us (Bhaskaran J.) in George v. Chakkunni (1977 KLT. 865). The decision supports that proposition. To the same effect is the principle of the judgment of the Full Bench in Govindan Gopalan v. Raman Gopalan (1978 KLT. 315) that where a question of tenancy had been once decided by the Land Tribunal and the matter comes up for consideration again before a Civil Court, the same cannot be said to ‘arise’ for consideration so as to make a reference under S. 125(3), necessary. It was also argued that the non-obstante clause in S. 13 of the Act, conferring fixity of tenure, or in S. 7-B thereof, would not get rid of the fundamental principles or doctrines like res judicata, or lis pendens. Reliaoce was placed for this position on N. Krishna Pillai v. State Bank of Travancore (1967 KLT. 188) and Mohamed Mytheen v. Sreedharan (1976 KLT. 188) and Mohammed Mytheen v. Sreedharan (1976 KLT. 919—F.B). The latter is a Full Bench decision binding on us as far as lis pendens is concerned. On the principle of the rulings cited and noticed, Counsel is well founded in his submission that a matter which had become res judicata, cannot be said to ‘arise’, so as to be referred to the Tribunal under S. 125(3). We shall assume, without consideration, that the earlier decision of Raman Nayar, J. lays down correct law. But the difficulty for the appellant is: Had the question of the tenancy right now set up by the appellant been decided on the earlier occasion so as to be barred by res judicata? We think, not The question mooted on the prior occasion in 1970 KLT. 739, was only whether the respondent was entitled to fixity of tenure under S. 13 of the Land Reforms Act by reason of his claims for fixity of tenure under S. 4 of the Cochin Varumpattomdars Act, read with the proviso after S. 3(1)(vii). This plea was negatived by our judgment on 29-10-1969. That was rendered lone prior to the two Acts—35 of 1969 and 25 of 1971—which had introduced substantial amendments to the Land Reforms Act. By one of them S. 7-B under which the respondent now claims fixity of tenure was introduced. In such circumstances, we cannot hold that the decision in 1970 KLT. 739 operates as res judicata against respondent's claim of rights which sprang into existence subsequent to the decision.

9. Counsel for the appellant then contended that under S. 3(1)(vi) of the Land Reforms Act, leases granted by a limited owner are exempt altogether from the provisions of Chapter II of the Act; and hence, a provision for fixity such as what is contained in S. 7-B of the Act, cannot operate on a lease granted, as in this case, by a limited owner, without a corresponding amendment of S. 3(1)(vi). Counsel for the respondent, rightly urged that, whatever be the merits of this plea, the question of the applicability of the exemption as also the plea of fixity have both to be referred to the Land Tribunal under S. 125(3). For this he placed reliance on Lissy v. Kuttan (1976 KLT. 571-F.B.). That decision followed a prior ruling in Narayana Menon v. Kallandi (1973 KLT. 983), which had laid down the same principle Counsel for the respondent is right in his submission and is supported by the decisions. We accept the same.

10. There remains the question whether the proviso to S. 125(1) of the Act would apply to exclude the operation of the Section on the ground that the proceedings were pending at the commencement of Act 35 of 1969. Counsel for the appellant would contend that execution proceedings are a continuation of the suit, and as the suit had been both instituted and decreed finally in Second Appeal on 29-10-1969 as noticed, prior to Act 35/1969 the execution proceedings started and continued thereafter were a mere continuation of the suit and therefore there was no fresh commencement of proceedings by taking out execution. On the other hand, Counsel for the Respondent contended that execution proceedings are proceedings separate from, and independent of, the suit, and that under S. 125 of the Act with which we are concerned, what is material is to see the nature and the character of the proceedings in relation to which the applicability of S. 125 arises for consideration. We were taken through a number of decisions which have dealt with the meaning of the expression ‘proceeding’. We think it unnecessary to refer to all these. The position, we think had been correctly noted by Mulla at page 246 of the C.P.C where the learned Author observes that an appeal or an execution are only continuations of the suit. But this is stated in reference to the applicability of the principle of ‘lis pendens’ to appeals and executions. In Governor-General in Council v. Shiromani Sugar Mills Ltd. (AIR. (33) 1946 Fed. Court 16), the question arose as to the scope of the expression “legal proceedings” under S. 171 of the Indian Companies Act, 1913, which provided that after a winding up order, no suit or other legal proceedings shall be proceeded with or commenced against the company except by leave of Court, and subject to such terms as the Court may impose. It was observed:

“………In our judgment, it need not, and therefore should not, be confined to “original proceedings in a Court of first instance, analogous to a suit, initiated by means of a petition similar to a plaint”. S. 171 must, in our judgment, be construed with reference to other sections of the Act and the general scheme of administration of the assets of a company in liquidation laid down by the Act. In particular, we would refer to S. 232, S. 232 appears to us to be supplementary to S. 171 by providing that any creditor (other than Government who goes ahaed, notwithstanding a winding up order or in ignorance of it, with any attachment, distress, execution or sale, without the previous leave of the Court, will find that such steps are void. The reference to ‘distress’ indicates that leave of the Court is required for more than the initiation of original proceedings in the nature of a suit in an ordinary Court of law, moreover, the scheme of the application of the company's property in the pari pasiu satisfaction of its liabilities, envisaged in S. 211 and other sections of the Act, cannot be made to work in coordination, unless all creditors (except such secured creditors as are “outside the winding up” in the sense indicated by Lord Wrenbury in his speech in 1923 AC. 647 at P. 671, are subjected as to their actions against the property of the company to the control of the Court. Accordingly, in our judgment, no narrow constructions should be placed upon the words “or other legal proceeding in S. 171. In our judgment, the words can and should beheld to cover distress and execution proceedings in the ordinary Courts. In our view, such proceedings are other legal proceedings against the company, as contrasted with ordinary suits against the company”.

11. The comprehensiveness of the scope of “legal proceeding” thus expounded had been somewhat qualified in S.V Kondaskar, Offl. Liquidator v. V.M Deshpande, Income-tax Officer, Companies Circle I(8) Bombay ((1972) 1 SCC 438 : AIR. 1972 SC. 878), which excluded income-tax assessment proceedings from its scope. Applying the above principle and relating the same to the scheme of the Land Reforms Act, we find that the Act refers to different types of proceedings, such for instance, as, suits, appeals, revisions, review, proceedings in execution of a decree, etc. (See for instance S. 108(3) which we have already quoted). We think in the circumstances that the pendency of the proceedings must be judged with special reference to the proceedings in relation to which the applicability of S. 125 arises. As the question here arises in execution proceedings, the point for consideration is, whether the execution proceedings were pending on the date of the commencement of Act 35 of 1969. Admittedly they were not, as the execution petition E.P 143 of 1971, was filed only on 10-8-1971 and delivery was taken on 18-8-1971. It follows therefore that the proviso to S. 125(1) is not attracted and that the lower appellate court was correct in directing a remand and an investigation in the light of the provisions of S. 125 of the Act. We see no ground to interfere with the judgment under appeal. We dismiss the appeal with costs.

12. Dismissed.

George v. Vareed

Structured Summary of the Opinion — Gopalan Nambiyar, C.J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

George v. Vareed

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