KRUSHNA CHANDRA MUDULL Vs. BRUNDABAN CHANDRA DEB

JUDGEMENT

(1.) The decree -holder has filed this application under Section 115 of the Code of Civil Procedure ('CPC' for short) challenging the order passed by the learned Munsif, Puri on 14 -8 -1991 holding that the decree under execution is not executable. The order was passed on the application filed by the judgment -debtor -opp. parties under Section 47, CPC which was registered as Misc. Case No. 401 of 1990.

(2.) THE factual position of the case relevant for the purpose of this proceeding may be stated thus : A. O. 03 decimals of land in plot No. 399 and A. O. 02 decimals in plot No. 400 originally belonged to one Anarida Bhoi. In 1914 the judgment -debtors purchased the said land under a registered sale deed. On 27 -6 -1922 they leased out the land in favour of one Shyama Das for five years for residential purpose and on 10 -6 -1930 executed another lease deed in his favour for 15 years for the same purpose. Shyama Das constructed a thatched house on the land and resided there. After his death his wife Suna Bewa remained in permissible occupation of the land. On 16 -4 -1959 she illegally transferred the land in favour of the decree -holder under a registered sale deed. Therefore, the judgment -debtors filed Title Suit No. 186 of 1966 against Suna Bewa for her eviction which was decreed ex parte on 22 -11 -1966. Suna Bewa voluntarily left possession of the suit premises in favour of the judgment -debtors ; therefore there was no necessity to execute the decree through Court. The suit land vested in the State under the provisions of the Orissa Estates Abolition Act, 1951 (O. E. A. Act) on 29 -4 -1963. The Judgment -debtors filed Claim Case No. 6110/16904 of 1963 -64 for settlement of the land in their favour. During pendency of the said claim case the decree -holder filed Title Suit No. 118 of 1972 claiming his title and seeking recovery of possession of the suit land. The suit was decreed on 23 -12 -1974. Title Appeal No. 29/11 of 1975 was also decided in favour of the decree -holder with the finding that he has not acquired any occupancy right in the land under the provision of Section 239 of the Orissa Tenancy Act. In Second Appeal No. 132 of 1976 filed by the judgment -debtors the High Court by judgment dated 9 -2 -1979 modified the judgment of the lower appellate Court to the effect that the decree -holder has no tide to the land due to the vesting under O. E. A. Act, but he has a right to recover possession of the same. The present Execution Case has been filed on the basis of the judgment and decree passed in the Second Appeal. Subsequently O. E. A. Claim Case No. 6110/1 6904 of 1 963 -64 was alleged in favour of the judgment -debtors on 26 -2 -1981. The application filed by the decree -holder for settlement of the suit land in his favour. Misc. Case No. 685 of 1981, was rejected on 19 -12 -1983. The contention of the judgment -debtors was that in view of the settlement of the land in their favour in O. E. A. Claim Case No. 6110/16904 of 1963 -64 the decree in question had been rendered executable and, therefore, the execution proceeding was liable to be dropped.

(3.) NO oral evidence was adduced in the case. Both the parties filed documents in support of their respective cases.