SABITRI DEI Vs. SARAT CHANDRA ROUT AMD

JUDGEMENT

(1.) Leave granted.

(2.) This appeal is directed against the Judgment of the orissa High court dated 19-4-1993 in Civil Revision No. 403 of 1987 arising out of a petition filed under Section 47 of the Code Of Civil Procedure in Execution Case No. 110 of 1981. The judgment-debtor is the appellant in this court. The deceased Jai Rout had filed a suit for recovery of possession in the court ofmunsif, Cuttack which was registered as Title Suit No. 243 of 1953, the same suit was decreed on 30/3/1965. The decree became final inasmuch as the appeal against decree was dismissed on the ground of abatement and the said order of abatement was also sustained in Civil Revision No. 252 of 1974 by the order of the High court dated 15/10/1976. In the meantime the suit property which is admittedly an intermediary estate stood vested with State of orissa by virtue of a notification dated 27/4/1963 under Section 3 (1 of the orissa Estates Abolition Act (hereinafter referred to as 'the Act') , The plaintiff decree-holder deceased Jai Rout levied execution by filing an application which was registered as Execution Case No. 110 of 1981. The judgment-debtor filed an objection under Section 47 challenging the executability of the decree in question. The executing court by its order dated 10/3/1987 allowed the application under Section 47, Civil Procedure Code filed by the judgment-debtor and dropped the execution case on a finding that the property in question has been vested in the State government and is no longer available to be executed under the decree. The decree-holder, deceased Jai Rout challenged the said order of the executing court by filing a revision in the High court. During the pendency of the said revision, decree- holder having died, the legal representatives were substituted who are the respondents in this appeal. The High court came to the conclusion that notwithstanding the vesting of the estate under the Act, the question whether the right of the decree-holder had extinguished is not open to be raised in the execution proceeding because of the principle of constructive res judicata. The High court also came to the conclusion that the decree in question cannot be held to be a nullity as the civil court had the jurisdiction in the suit for recovery of possession and Section 39 of the Act does not take away that jurisdiction. With these conclusions the order of the Munsif having been set aside and the executing court having been directed to execute the decree, the judgment-debtors are in appeal to this court.

(3.) Mr P. N. Misra, learned counsel appearing for the appellant contends that the suit in question having been filed on the basis of the proprietary right of the plaintiff and that right having vested in the State free from all encumbrances on and from the date of notification under Section 3 of the Act dated 27/4/1963, the decree-holder did not have any existing right in the property and therefore is not entitled to execute the decree In question and the High court committed error in brushing aside this question by applying the principle of res judicata. Mr Misra further contended the notification under Section 3 (1 of the Act having been issued on 27/4/1963 and the property in question not having been settled with the intermediary under Section 6 of the Act. the civil court had no jurisdiction to pass a decree in March 1965 and thus the decree in question is a nullity. The principle of res judicata will not be attracted and invalidity of the decree can be set up whenever it is sought to be enforced or acted upon as a foundation for a right even at the stage of execution or in any collateral proceeding. Mr Mohanty, learned counsel appearing for the respondents on the other hand contended that the decree in question cannot be held to be a nullity as the civil courtcannot be said to be having inherent lack of jurisdiction. He also contended that Section 6 of the Act overrides the other provisions of the Act and therefore the deemed settlement as contemplated under Section 6 on the intermediary does not divest the intermediary of his right to recover possession and in this view of the matter the High court was fully justified in directing execution of the decree in question.