TMI Blog1978 (8) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... t this, the learned Judge noticed the decision of Raman Nayar J. of this Court cited on the other side, in New Model Bank Ltd. v. P. A. Thomas (AIR 1960 Ker 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. Section 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 Section 3 (1) (vii) of the Act, to the effect that nothing in Clauses (i) to (vii) shall apply to persons who were entitled to fixity of tenure immediately before 21st Jan. 1961 under any law then in force. His contention was that he was entitled to fixity of tenure under the Cochin Varumpat-tomdars 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 20-10-1969. (vide Cheru Vareed v. Chakunny (1970 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in para 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 that 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 I 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 Section 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 matter to the Land Tribunal if the provisions of the Statute so required. 5. Section 108 (3) of the Land Reforms Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be ignored as void. We guard ourselves 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 Sections 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. 7. It was then urged that in S. A. No. 916 of 1969 (1970 Ker LT 739): (AIR 1971 Ker 311 this Court has held that the lease in question was exempt under Section 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 Section 3 (1) (vii) of the Act. This finding, it was said, had become res judicata, and therefore a question of te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 7-B under which the respondent now claims fixity of tenure was introduced. In such circumstances, we cannot hold that the decision in 1970 Ker LT 739 : (AIR 1971 Ker 31), operates as res judicata against respondent's claim of rights which sprang into existence subsequent to the decision. 8. Counsel for the appellant would then contend that under Section 3 (1) (vi) of the Land Reforms Act, leases granted by a limited owner are exempt altogether from the provisions of Chap. II of the Act; and hence, a provision for fixity such as what i's contained in Section 7-B of the Act, cannot operate on a lease granted, as in this case, by a limited owner, without a corresponding amendment of Section 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 Section 125 (3). For this he placed reliance on Lissy v. Kuttan (1976 Ker LT 571) (FB). That decision followed a prior ruling in Narayana Menon v. Kallandi (1973 Ker LT 983), which had laid down the same principle. Counsel for the respondent is right in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articular, we would refer to Section 232. Section 232 appears to us to be supplementary to Section 171 by providing that any creditor (other than Government) who goes ahead, 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 passu satisfaction of its liabilities, envisaged in Section 211 and other sections of the Act, cannot be made to work in co-ordination, 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 construction should be placed upon the words or other legal proceeding in Section 171. In our judgment, the words can and should b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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