SIDHESWAR SAHU Vs. SECOND ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) In this writ petition filed by the judgment-debtor, the order of the District Court in revision rejecting the objection raised by the judgment-debtor to the executability of the decree is challenged. Since what is challenged is the decision of the Executing Court as modified by the Revisional Court, this proceeding can be understood only as one initiated under Article 227 of the Constitution of India, since Article 226 of the Constitution of India cannot apply and a writ of certiorari cannot issue to a Civil Court as has been held by the Supreme Court in Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.

(2.) One Moti Dei, mother of the petitioner entered into an agreement for sale of an extent of land in favour of opposite party Nos. 3 and 4 said to be the sons of her brother. The land agreed to be transferred was a piece of urban land for the consideration referred to in the agreement. Before entering into that agreement Moti Dei had filed a return under Section 6(1) of the Urban Land (Ceilling and Regulation) Act, 1976 (here in after called the Act) declaring that she was in possession of 6015.09 sq. metres of vacant land and claiming certain exemptions. The claim of Moti Dei for exemption under Section 20 of the Act was rejected by the competent authority on 11-8-1983. An appeal filed by Moti Dei challenging the decision of the Authority under the Act did not succeed. Moti Dei filed O.J.C. No. 718 of 1988 before this Court challenging the orders of the Original Authority and the Appellate Authority. By judgment dated 22-1-1992, which is reported in (1992) 73 Cut LT 409, Sidheswar Sahoo v. Special Officer and Competent Authority, this Court set aside the order of the competent authority as affirmed by the appellate authority to the extent they related to the area covered by a dwelling house and remanded the proceeding to the competent authority for redetermination, in terms of the observations made in that judgment. It is not made clear before us as to what happened subsequent to that remand. Opposite party Nos. 3 and 4 have urged that while the matter was pending the Urban Land (Ceiling and Regulation) Repeal Act, 1999 came into force and subsequently on the basis of the Statutory Resolution of the State Legislature published in the Extraordinary Gazette Notification dated 26-4-2002, the proceeding must be taken to have abated.

(3.) Meanwhile opposite party Nos. 3 and 4 had filed a suit for specific performance of the agreement for sale executed by Moti Dei in their favour. Pending that suit, Moti Dei died and the petitioner herein was impleaded as her legal representatives. The petitioner chose not to contest the suit and an ex parte decree for specific performance was passed on 1-5-1991. By that decree, the defendant, the petitioner herein, was directed to execute the sale deed within three months of the decree and providing further that on his failure to do so, the sale deed will be executed by the Executing Court. The decree-holders approached the Court for execution of the decree and the sale deed complaining that the judgment-debtor had failed to perform his obligation under the decree. They also deposited the balance sale consideration. By order dated 23-4-1994, the Executing Court exempted the decree holder from obtaining permission from the competent authority under the Act. Meanwhile, an attempt made by the judgment-debtor to get the ex parte decree set aside did not succeed, the trial Court rejected that application. The appeal filed against that order was also dismissed and the revision filed in this Court also did not succeed. Thus, the defendant failed to get the ex parte decree set aside. Meanwhile, the Executing Court approved the draft sale deed produced by the decree holders. At that stage, the judgment-debtor filed Misc. Case No. 504 of 1994 invoking Section 47 of the Code of Civil Procedure challenging the executability of the decree. According to the judgment-debtor, the agreement for sale executed by Moti Dei and the decree passed by the Court for specific performance of that agreement, were both void in view of Section 5(3) read with Section 10(1) and Section 42 of the Urban Land (Ceiling and Regulation) Act. The agreement for sale entered into by Moti Dei was void in law in view of the prohibition contained in the Act and the ex parte decree for sale passed on the basis of such a void agreement and against the terms of the Statute, was itself void and this contention can be raised by the judgment debtor in execution so as to contend that the decree was inexecutable. The decree holders resisted this contention by pointing out that the agreement for sale was not void for all purposes; that in any event, the execution of the decree validly obtained by the decree holders cannot be resisted by taking recourse to the provisions of the Act; that it was not open to the judgment-debtor to raise such contention at the stage of execution and that the objection was liable to be overruled. The Executing Court took the view that in view of the relevant provisions of the Act relied on by the judgment-debtor, it had to be held that the agreement for sale executed by Moti Dei could not confer any valid right on the decree holders and consequently, the decree granted by the Court for specific performance itself lacked jurisdiction and hence the decree was inexecutable. The revision filed by the decree holders, in the District Court (in the State of Orissa the power under Section 115 of the Code of Civil Procedure is conferred on the District Court subject to pecuniary jurisdiction) was allowed by that Court taking the view that the provisions of the Act relied on by the judgment-debtor could not invalidate a decree passed by the Civil Court in a suit for specific performance of the agreement for sale, and that the object raised by the judgment debtor was not tenable. But, it directed that the decree be executed noticing that sale effected was subject to the claim for exemption under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976. This decision of the District Court in revision was challenged by the judgment-debtor before this Court by filing this writ petition on 29-7-1996.