1. The revision petitioner is the 2nd defendant in a suit for declaration of title and recovery of possession. She is the mother of the 1st defendant. The 1st defendant alone entered appearance in the trial court Although notice was duly served en the 2nd defendant, she did not enter appearance.

2. The 1st defendant contended that he was a tenant entitled to the protection of the Kerala Land Reforms Act. The question as to tenancy, as claimed by the 1st defendant, was referred to the Land Tribunal under S.125 (3) of the Act. The reference was returned by the Land Tribunal stating that the 1st defendant was not a tenant. The suit was decreed. The judgment and decree became final as there was no appeal against them. In execution proceedings from which the impugned order arises, various contentions were raised by the 1st defendant. Those contentions were rejected. The 1st defendant has not challenged the findings entered by the execution court.

3. The 2nd defendant who entered appearance for the first time in execution proceedings contended that she was a kudikidappukari. She therefore requested for a reference on that question to the Land Tribunal under S.125 (3) The court below held that there was no need to make a reference on an application by a person who, despite due notice, did not enter appearance in the trial court.

4. The sole question that arises for consideration is whether the 2nd defendant who, despite due notice of the proceedings in the trial court did not enter appearance in that court, can for the first time raise the question of kudikidappu in execution proceedings. Counsel for the revision petitioner Shri. K. Sudhakaran contends that although the 2nd defendant did not enter appearance in a suit for recovery of possession, it is open to her to raise the question of kudikidappu for the first time in execution proceedings. He further contends that the principle of constructive res judicata does not apply to a case where a person claims the protection of the statute.

5. The 1st defendant who is the son of the 2nd defendant entered appearance in the trial court and raised the question of tenancy. A reference made to the Land Tribunal resulted in a decision unfavourable to him, and on the basis of the decision of the Land Tribunal the court pronounced a decree which became final in the absence of an appeal. The trial court found that due notice was served on the 2nd defendant who is the mother of the 1st defendant and, notwithstanding the notice, she refused to enter appearance as a result of which an ex parte decree was passed against her. An application for setting aside the ex parte decree under Order IX R.13 CPC. was filed by her. In that application there is no whisper as to any kudikidappu right. The application was rejected. In the civil miscellaneous appeal against the order of the trial court rejecting her application there is no mention of any right relating to kudikidappu. The C.M. appeal was subsequently dismissed.

6. It is true that in an application under Order IX R.13 there is no need to mention kudikidappu right. It is also true that in an appeal against the order of the trial court under that provision there is no need to make any reference to kudikidappu right. However, the fact that kudikidappu was not mentioned by the revision petitioner until proceedings in execution commenced is significant.

7. Shri Sudhakaran is justified in contending that no principle of res judicata is applicable to the facts of the present case. The question, however is, can a person who had full opportunities to have had recourse to the protection offered by the statute, raise it for the first time in execution proceedings. In my view, it is an abuse of the process of the court for a person with full notice of the trial to refuse to enter appearance and then attempt to prevent the execution of the decree by raising a plea based on a statutory protection for the first time. It is true that S.125(3) applies to any pro