GOPAL KRISHNA PRADHAN Vs. JAPI PRADHAN

JUDGEMENT

(1.) Opp. party is the wife of the petitioner. She obtained a decree for maintenance and for non -payment of the decretal amount she filed an execution case in the Court of Subordinate Judge, Bargarh. At the instance of the decree holder Ac. 2.04 decimals of laud were attached in the execution case for realisation of the decretal dues. After the attachment, the father of the judgment -debtor filed an application under Order 21 Rule 58 C.P.C. for realisation of his share in the attached properties alleging that the said item of properties belonged to the family in which he had some interest. The Court allowed his prayer and released his interest in the attached properties. The judgment -debtor thereafter filed an application purporting to be one Under Section 47 of the C.P.C. challenging the executability of the decree by way of sale of 1/3 interest of the judgment -debtor alleging that it would lead to the fragmentation of the whole land, which is prohibited by the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the 'Act'). The learned Execution Court rejected the application saying that there is no prohibiting for sale of the interest of the judgment -debtor in the aforesaid Act and, therefore, the petition is without any merits. Hence the revision.

(2.) THE learned Counsel appearing for the judgment -debtor -petitioner submits that Section 34 of the Act prohibits transfer or partition of an agricultural land after a notification Under Section 41 has been issued. It is submitted that in this case the consolidation operation has come to a close by issuance of a notification Under Section 41 of the Act and, therefore, Section 34 has its full applicability. It was further argued that since carving out of 1/3 share of the judgment -debtor is prohibited by Section 34 of the Act the sale thereof is also prohibited residening the decree inexecutable. - -

(3.) THE aforesaid analysis is, however, on the basis the Section 34 of the Act applies to involuntary sales. This decision, however, may not be construed as one deciding the aforesaid point as it is upwarranted at the moment in this case. I would, therefore, conclude that the application of the petitioner Under Section 47 of the C.P.C. has been rightly rejected by the learned Executing Court. The revision is accordingly dismissed. No. costs.