RADHI DEI Vs. LALIT BIHARI MOHANTY

JUDGEMENT

(1.) The question that falls for determination in this case is whether on the facts and in the circumstances of the case the executing Court can refuse to execute the decree holding that it is a nullity and it has become inexecutable.

(2.) Being unsuccessful in their attempt to challenge the validity and executability of the decree under execution, the petitioners filed this application under S.115 of the Civil Procedure Code ('C.P.C.' for short) assailing the order dated 12-4-89 of the Subordinate Judge, Bhadrak in Misc. Case No. 45 of 1987 rejecting the application filed by them under S.47, C.P.C.

(3.) The relevant facts leading to the present proceeding may be stated thus : Original Suit No. 63-I of 1971 was filed by the opposite party, Lalit Bihari Mohanty, against Parbati Bewa, Aparti Jana, Kartika Jena and some other for declaration of title and for recovery of possession of Ac. 0.10 decimals of land out of plot No. 406 under C.S. Khata No. 12 of Mouza Jagannathpur, on which, as stated by the petitioners, their residential house stands. The suit was decreed ex parte on 16-4-76 and the defendants were directed to be evicted from the suit land. Thereafter the plaintiff decree-holder levied Execution Case No. 2 of 1983 for recovery of possession of the suit land. Admittedly, the plaintiffs had intermediary interest in the suit land which was abolished under the provisions of the Orissa Estates Abolition Act, 1952. In the year 196263, on the application filed by the ex-intermediary (plaintiff) under Ss.6, 7 and 8 of the Act, the land was settled with him by the Tahasildar subject to certain conditions regarding payment of Salami, arrear rent etc. The plaintiffs claimed title to the suit land on the basis of the said settlement in their favour. Subsequently, during the settlement operation it was noticed by the revenue authorities that the land was in possession of the predecessors-in-interest of the revision-petitioners and has been in their possession prior to the abolition of the intermediary interest and vesting of the estate in the State Government. Thereafter, a proceeding (R.F. No. 258 of 1984) was initiated by the Tahasildar in which both the decree-holder as well as the judgment-debtor were noticed, the matter was inquired into and it was held that the previous order settling the suit land with the ex-intermediary (plaintiffs) was invalid since no notice had been issued as mandatorily required under the provisions of the Act and since the condition mentioned in the order had not been complied with by the lessor. It was further held by the Tahasildar that the suit land had been in possession of the predecessors-in-interest of the revision-petitioners long prior to the vesting of the estate in the State Government. On these findings, the Tahasildar by order dated 10-11-86 directed that the petitioners shall be recognised as tenants in respect of the land and shall be entitled to pay rent for the same. Thereafter, the petitioners filed the application under S.47 of the C.P.C., challenging the executability of the decree of eviction on the grounds, inter alia, that, on account of the subsequent order of the Tahasildar annulling the settlement of the land with the plaintiffs the decree has been rendered inexecutable and the execution proceeding is liable to be dismissed. The learned Subordinate Judge by the impugned order rejected the application holding that the subsequent event does not affect the validity and executability of the decree. Hence, this revision petition by the judgment-debtors. The answer to the question formulated earlier depends on determination of the point whether due to the subsequent development in the case the decree under execution is a nullity. In my view on the facts and circumstances of the case, the question is to be answered in the affirmative and the decree-holder is not entitled to execute the decree.