LAWS(ORI)-1993-8-28

PALAU BAG Vs. ADHIKARI PATRA

Decided On August 13, 1993
Palau Bag Appellant
V/S
Adhikari Patra Respondents

JUDGEMENT

(1.) This case has come before us by way of reference by the learned Single Judge, The question raised by the learned counsel for the petitioners in this case is whether an objection is available to be raised at the execution stage to a decree on the ground of it being without jurisdiction on the plea that in the suit an order for its abatement should have been passed but on the contrary was refused illegally. The short facts necessary to elucidate the point raised are that the plaintiff -opposite parties brought the suit for declaration of right, title and interest, confirmation and in the alterative recovery of possession and for permanent injunction against the defendant - petitioners. During the pendency of the .suit the notification Under Section 3 (1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (hereinafter referred to as 'the Consolidation Act') having been issued an objection was raised by the defendants to the continuance of the suit and praying for its abatement. It is submitted by the learned counsel of the petitioners that application was rejected holding the Consolidation Act to have no application at the land was homestead. The order refusing abatement of the suit was not challenged in any higher forum. The suit having been decreed, the decree was put to execution. At the execution stage, the defendants again raised the same objection contending the decree to be a nullity and consequently incapable of execution. It is pointed out by the learned counsel for the opposite parties that prior to the order impugned in the present revision an earlier application Under Section 47, CPC had been filed on these self -same grounds but that had been rejected by the Court by a reasoned order which also became final without challenge. One more thing to be noted is that after the Full Bench decision of this Court in 1988 (I) OLR 334, A1R 1988 Orissa 166 (Sundarmani Bewa v. Dasarath Parida) deciding homestead land to be not consolidable area, the Consolidation Act was amended by Orissa Act 2 of 1989 substituting the definition of Section 2 (g) of the consolidation area retro - spectively from 10 -8 -1973 and validating all orders passed in consolidation proceedings notwithstanding the provisions of the earlier Act or the effect of any judgment, decree or order, etc., treating a land to be consolidation area even though it was not so under the pre - amended Act.

(2.) THE submission of the learned counsel of the petitioners is that since the Consolidation Act has been amended retrospectively to include homestead land as consolidable area and the suit was also otherwise substantially for the relief of declaration of right, title and interest and the prayer for injunction was only an ancillary one, the order refusing the abatement was illegal and consequently the decree passed was a nullity. If the decree was a nullity and void, its incapability of execution can be asserted even at the execution stage. The question raised by the learned counsel for the petitioners is no longer res Integra and has been decided by the Division Bench decision of this Court reported in 1986 (II) OLR 566 (Bishnu Mohan Mallik v. Dhruba Naik) wherein it was held that after a notification is published Under Section 3 (1) of the Consolidation Act, the abatement of a civil suit is not an automatic process but such a consequence ensues only after passing of an order to that effect as contemplated Under Section 4 (4) of the Consolidation Act, Until such an order has been passed, the suit does not abate and continues. That being so, it follows that if an order is passed refusing abatement and it is not ohallenged.the suit is to continue unabated and the decree passed would not be without jurisdiction, Jurisdiction properly understood is the authority or the capacity to assume and discharge certain functions. In the context, of Courts, of course, it means the authority of the Court to be in seisin of the case and decide. As every suit filed has to be continued and decided unless there is any legal bar or prohibition for the same, the suit filed by the opposite party -plaintiffs was bound to be continued as the abatement was refused. It was open for the petitioners to have challenged the order and get it set aside. It must however be held that at the order was passed dismissing the petition for abatement, the order had validly passed in view of the Full Bench decision that homestead land do not come within the consolidation area and since that was so, the question whether the substantial question 'to be decided in the suit pertained to right, title and interest was irrelevant as if the area was not consolidate area, the Civil Court undoubtedly had the jurisdiction to decide the issues. The Amendment Act in 1989 does not purport to set aside the effect of a decree passed unless the land has been subjected to a consolidation proceeding and contrary orders have been passed by the consolidation functionaries.