The main legal point established in the judgment is that while the provisions of S.75 and 78 of the Kerala Land Reforms Act, 1963 confer benefits, they do not prohibit the execution of a mortgage decree for the sale of a kudikidappu.

1. The decree-holder, a Company, is the appellant in this case. It is the foreman of a Chitty. The 1st defendant was a subscriber in that Chitty. He prized the ticket and he along with his three brothers, defendants Nos. 2 to 4, executed the mortgage bond on which the appellant instituted the suit, in which the decree under execution was passed. The said mortgage was in 1961. The decree that is put in execution is dated 22 21970. By that decree the decree-holder is allowed to realise the mortgage amount by sale of the mortgage holding which, as seen from the schedule to the decree, is a substantial building consisting of nine rooms and situate in Ward No. XIX of the than Ernakulam Municipality now the Cochin Corporation.

2. Admittedly, the building aforesaid directed to be sold by the decree stands on a stranger's land and the same constitutes the kudikidappu of the judgment-debtors. When the building was put up for sale in execution of the decree, the judgment-debtors objected to sale of the same claiming that the same being their kudikidappu it is inalienable as provided in S.78 of the Kerala Land Reforms Act, 1963. The lower courts upheld the aforesaid contention and stopped the sale. Hence this appeal

3. The questions that arise for consideration are whether the execution Court can, despite the decree for sale, on any ground refuse to execute the same and stop the sale; and, whether S.75 and 78 of the Kerala Land Reforms Act, 1963 prohibit Court-Sale of a kudikidappu in execution of a mortgage-decree for sale of it.

4. A competent judicial decision is conclusive until reversed, and the verity of the matter or issue decided cannot be contradicted by either of the parties thereto nor raised again by them in any subsequent proceeding between them including execution proceedings in the same suit. Though this principle of res judicata is applicable to proceedings in execution of a decree in the same suit, S.11 of the Code of Civil Procedure, 1908 in terms does not govern those proceedings for (he reason that there are no two suits, a former and a subsequent suit, as contemplated by that provision. See Appayya v. Venkataratnam (AIR. 1954 Madras 1). It is not disputed in this case that the decree for sale of the kudikidappu was passed by a Court having jurisdiction over the parties and the subject matter. I will therefore proceed on the basis that the appellant has made out a primafacie case of res judicata by establishing all the constituent elements of an estoppel by judgment or estoppel per rem judicatam.

5. When a primafacie case of res judicata is established and if the opposite party is not in a position to meet by direct denial or disproof the case so made against him, it is still open to him to defeat the estoppel by setting up and establishing certain affirmative answers. Of these there are four main classes 'fraud, cross-estoppel, contract and public policy'; Spencer-Bower and Turner on Res judicata, second Edn. Para 369. The first three answers are not advanced in this case, and the fourth alone remains to be examined here.

6. The earlier view was that'public policy has little or no importance in cases of estoppel by res judicata'. See Spencer Bower on Res judicata, First Edition, para 274, and Second Edition Para 388 However, it appears that without so stating Courts were recognising an affirmative answer of public policy when judicial decisions upheld such contentions as 'there is no estoppel against a statute', 'that a public officer cannot be estopped from carrying oat his duties under the statute' like a taxation statute etc. In taxation cases the plea of res judicata was got over by Courts by upholding also the answer that 'the questions were different because the years were different' See Instalement Supply (Pri) Ltd. v. Union Bank of India (AIR 1962 SC. 53), New Jehangir Vakil Mills Co. Ltd v. Income Tax Commissioner (AIR 1964 SC 318), Society of Medical Officers of Health v. Hope Valuation Officer (1960