PURNA CHANDRA SAHU AND ORS. Vs. GANGADBAR SAHU

JUDGEMENT

(1.) THIS application under Section 115, Code of Civil Procedure by the Decree -holders is direct ed against the order of the executing Court holding the decree to be inexecutable on accounting the petition under Section 47, Civil Procedure Code by the opposite party (judgment -debtor).

(2.) THE Petitioners filed Title Suit No. 35 of 1978 -1 in the Court of the Munsif, Balasore for a declaration that the sale deed executed by their father transferring the suit property was void and not binding on them and for recovery of possession from the Defendant. In the suit, the opposite party did not appear despite service of notice and was set ex parte. The suit was decreed ex parte against the Defendant. The decree was put to execution in Execution Case No. 52 of 1978. In the said proceeding the opposite party filed an application under Section 47 of the Civil Procedure Code challenging executability of the decree mainly on the ground that at the time when the decree was passed the suit property had been included in the Notification issued under Section 3 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short 'the Consolidation Act '). Therefore the suit having abated, the decree was a nullity and was inexecutable. The executing Court by the impugned order, as noticed earlier, upheld the objection and dismissed the execution case as not maintainable. The learned Counsel for the Petitioners mainly raised two contentions, namely: (i) that the objection relating to abatement of the suit was barred by principle of constructive res judicata, and, (ii) that no material was produced before the executing Court to come to the conclusion that the suit had abated under Section 4 (4) of the Consolidation Act.

(3.) In Bishnu Mohan Mallik v. Dhruba Naik C. R No. 130 of 1979, decided on 20 -8 -1986, a division bench of this Court considering the plea of non -executability of the decree, came to hold that the objection was hit by the principle of res judicata since an issue had been raised in the suit regarding its maintainability and the same having not been pressed, was decided against the Defendant judgment debtor. It is pertinent to mention here that in the said decision the Court recognised the position as well settled that under Section 4 (4) of the Consolidation Act, abatement of the suit or proceeding was not automatic and it could be held to have abated only on an order to that effect being passed by the Court.