JUDGMENT
D.P. Mohapatra, J.
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. The decree-holder in his objection to the petition filed under Section 47, CPC questioned the maintainability of the proceeding under Section 47, CPC on the ground that it is hit by the provisions of constructive res judicata since on the self-same ground the opp. party- judgment-debtors had instituted Title Suit No. 30 of 1982 which was dismissed for default. The further contention of the decree-holder was that the questions raised and the submissions made by the judgment- debtors did not relate to execution, discharge and satisfaction of the decree and, therefore, the question of acquisition of title as raised by the judgment-debtors could only be decided in a properly constituted suit and the Executing Court was not competent to decide that question. The decree-holder alleged that the suit property was not included in the claim case till 10-11-1978 it was subsequently inserted in the proceeding and the O. E. A. Collector had no jurisdiction to entertain the claim of the judgment-debtors beyond the period of limitation. The decree-holder also alleged that there was no public notice nor any proclamation in the O. E. A. claim case filed by the judgment-debtors and the order passed by the O. E. A. Collector was void and not est in the eye of law. On these grounds the decree-holder prayed for rejection of the petition filed under Section 47, CPC.
4. No oral evidence was adduced in the case. Both the parties filed documents in support of their respective cases.
5. The learned Munsif on analysing the points raised by the parties and on assessing the evidence led by them held inter alia, that (i) there was due publication of the proclamation and due service of notice in O. E. A. Claim Case No. 8110/16904 of 1963-64 before the O. E. A. Collector passed the order settling the suit land in favour of the judgment-debtors; (ii) that on the materials on record it could not be said that the suit plots 399 and 400 had been inserted subsequently in the claim petition ; (iii) that from the order-sheet dated 25-2-1981 of the O. E. A. Claim Case No. 3110/16904 of 1963-64 it was evident that the disputed plot. Nos. 399 and 400 under Khata No. 225/23 had been settled in favour of the judgment-debtors and rent schedule had been issued accordingly ; (iv) that from the copy of the order dated 19-12-1983 in Misc. Case No. 885 of 1981 it was clear that the decree- holder filed a petition for settlement of the suit land in his favour which was [ejected in view of the settlement of the said land in Claim Case No. 8110/16904 of 1963-64 and the proceeding was dropped. No evidence was placed to show that the order of settlement passed by the O. E. A. Collector was challenged by the decree-holder in any proceeding; therefore the same is binding on all concerned.
Considering the contention raised by the decree-holder that the petition filed under Section 47, CPC was not maintainable in view of the dismissal of Title Suit No. 33 of 1932, the learned Munsif took the view that the suit was filed by the judgment-debtors seeking relief under the provisions of Specific Relief Act which is not the nature of the case in the Misc. Case under Section 47. CPC. In the Misc. Case the judgment-debtors challenged the executability of the decree on the ground that by operation of law they have acquired title in the property and therefore, the decree passed in the suit for declaration of title, for confirmation of possession and for permanent injunction has been rendered inexecutable. The nature of the case pleaded in the two suits being different the bar under Order 9, CPC does not apply to the proceeding. The learned Munsif also considered the question of execution of the decree for recovery of possession in the light of the observation/direction of this Court in Second Appeal No. 132 of 1976 in which while categorically holding that the decree-holder had no title to the suit land this Court held that he could recover possession of the suit land. Relying on the decision of this Court in the case of Shri Arjun Samal v. Smt. Ushamani alias Usharani Kanungo and Ors., reported in 50 (1980) CLT 271 the learned Musif held that the decree for recovery of possession is also not executable. On these findings he allowed the Misc. Case and dismissed the execution case by the order dated 14-8-1991. The said order is under challenge in the revision petition.
6. From the discussions in the foregoing paragraphs the relevant factual positions which emerge are that after vesting of the suit land in the State Government under the O. E. A. Act and during pendency of the Claim Case filed by the judgment-debtor before the O. E. A. Collector the decree-holder filed the suit. Title Suit No. 118 of 1972 seeking declaration of his title to the said land and for recovery of possession of the same from the judgment-debtors. Apparently the suit was filed by him as the proprietor of the land. After vesting of the land in the State under the O. E. A. Act he had lost his title to the same. This position was made clear by this Court in second Appeal No. 132 of 1976. Therein this Court had held that the decree-holder was entitled to recovery of possession of the land presumably for the reason that by then no order had been passed by the O. E. A. Collector settling the land in favour of the judgment-debtors. The order of settlement of the land was passed on 25-2-1981. Undisputedly the settlement order vests a fresh title in and right to possession of the land in question in favour of the settles (judgment-debtors). Further, the application filed by the decree-holder for settlement of the said land in his favour. Misc. Case No. 885/81 was rejected on 19-12-1983. It is not in dispute that the order passed by the O. E. A. Collector settling the land in favour of the judgment-debtors has not been questioned by the decree-holder in any proceeding under law. Therefore, the position has to be taken as accepted that the judgment-debtors have title in the suit land and they are entitled to remain in possession of the same. This Court in the case of Arjun Samal (supra) construing the provision in Section 5 of the O. E. A. Act held that on the publication of the notification in the Gazette under Section 3-A of the Act the entire estate shall vest absolutely in the State Government free from all encumbrances and the intermediary shall cease to have any interest in such an estate other than the interests expressly saved by or under the provisions of the Act. This Court further held that as a consequence the decree for possession lost its efficacy by virtue of the express provisions of the Act and it was rendered incapable of execution by operation of law and the respondents were divested of their proprietary right over the land in dispute and the right accrued to the respondents under the decree by virtue of their proprietary right would not under the scheme of the Act, prevail over the statutory consequences following the vesting of estate in the State Government and would be lost to the proprietor. In the said decision this Court also considered the question where the Executing Court can refuse to execute the decree under Section 47, CPC and held that the Executing Court cannot go behind the decree under execution, but that does not mean that it his no duty to construe the decree and find out the true effect thereof ; the objection of the appellant is not with respect to the invalidity of the decree or with respect to the decree being wrong ; his objection is based on the effect of the provisions of the Act which has deprived the respondents of their proprietary rights Including the right to recover possession over the land in suit and in these circumstances the Executing Court can refuse to execute the decree as it has become inexecutable on account of the change in law and its effect. This Court placed reliance on the decision of the Supreme Court in AIR 1952 SC 1230 (Haji Sk. Subhan v. Madhorao).
7. The principles Said down in the aforesaid decided case squarely apply in the present case, it follows, therefore, that the learned Munsif rightly held that in view of the order of the O. E. A. Collector settling the suit land in favour of the judgment-debtors the decree-holder was not entitled to execute the decree for recovery of possession of the suit land from the judgment-debtors. The objection raised by the decree-holder against validity of the order of the O. E. A. Collector on the ground of want of due publication of poclamation and issuance of notice has been negatived by the learned Munsif on the finding that the materials on record revealed that proclamation was duly published and notice was duly issued before the settlement order was passed by the O. E. A. Collector. There is little scope to interfere with the said finding of fact in revisional proceeding. Therefore the order is unassailable.
Accordingly the revision petition being devoid of merit is dismissed, but in the circumstances of the case without any order for costs.