Holding

The decree is a nullity because the estate vested in the State free of encumbrances, and the executing court may lawfully refuse execution.

Summary

The decree-holder, a deceased intermediary, obtained a decree for possession of an estate in 1965, but the estate had been vested in the State of Orissa by a notification under Section 3(1) of the Orissa Estate Abolition Act in 1963. The judgment debtor filed a Section 47 CPC objection, and the executing court dismissed the execution on the ground that the property now belonged to the State. The High Court set aside that order, holding that the decree remained enforceable and that the Civil Court retained jurisdiction despite the vesting. On appeal, the Supreme Court examined the statutory scheme, noting that the intermediary had failed to file a claim under Section 6/8A within the prescribed period, causing the estate to vest free of encumbrances in the State and extinguishing the intermediary's rights. Consequently, the Court held that the 1965 decree was a nullity, that constructive res judicata did not apply, and that the executing court was correct in refusing execution. The appeal was allowed, annulling the High Court’s order and the execution proceeding.

Issues considered

Whether the decree for recovery of possession passed in 1965 is a nullity on the ground that the estate had vested in the State under the Orissa Estate Abolition Act.
Whether the executing court can refuse to execute a decree when the decree-holder’s proprietary right has been extinguished by operation of the Act.

Legislation cited

Code of Civil Procedure, 1908s. 47

Subjects

Estate abolitionNullity of decreeConstructive res judicataJurisdiction of civil courtsExecution of decreeOrissa Estate Abolition ActCivil Procedure Code

Judgment

/
A SABITRI DEi AND ORS.
v.
;..
SARAT CHANDRA ROUT AND ORS.
\'
• FEBRUARY 2, 1996
B •
[K. RAMASWAMY AND G.B. PATTANAIK, JJ.)

OJissa Estate Abolition Act-Sections 3(1), 6, Sa, 39---Intennedimy es-
late-Notification u/s 3( lrEstate vests free from all encumbrances in State
Govemmelll-Wlien no claim filed within stipulated peJiod-No settlement of .,
c rent 1nade with intennedia1y u/s 6-Civil Cozat losses jzaisdiction-Decree
passed held to be nullity-P1inciple of const1Uctive res judicata not appiicable.

The respondent plaintiff filed a title suit for recovery of possession
in 1953. The suit was decreed in 1965 and the decree became final. In the
D meantime the suit property which was an intermediary estate stood vested
with State of Orissa by virtue of a notification dated 27.4.1963, issued u/s .,_
3(1) of the Orissa Estate Abolition Act. The plaintiff-decree holder, ..
~
deceased levied execution. The respondent judgment debtor filed an objec-
tion u/s 47 Civil Procedure Code, challenging the executability of the
decree. The executing court allowed the application and dropped the (
E execution case while holding that the property had been vested in the State
Government and was no longer available to be executed under the decree.
In Revisi9n, the High Court while setting aside the order of the Munsiff
and directing the executing court to execute the decree held that the decree
could not be held to be a nullity as the Civil Court had the jurisdiction in
F the suit for recovery of possession and Section 39 of the Act did not take
away that jurisdiction. This appeal had been filed by the judgment debtors
against the judgment of the High Court.

The appellant contended that the suit having been filed on the basis
of the proprietary right of the plaintiff and that right having vested in the
G State free from all encumbrances on and from the date of notification u/s

-~
3 of the Act, the decree holder did not have any existing right in the
property and therefore was not entitled to execute the decree and the High
Court committed error in not considering this question by applying the
principle of res judicata; that the notification u/s 3(1) of the Act having
H been issued in 1963 and the property not having been settled wjth the
1168
SABITRI DEi v. S.C. ROUT 1169

intermediary u/s 6 of the Act, the Civil Court had no jurisdiction to pass A
a decree in 1965 and thus the decree in question was a nullity and that the
,
' principle of res judicata will not be attracted and invalidity of the decree
can be set up whenever it is sought to be enforced or acted upon as a
foundation for a right even at the stage of execution or in any collateral
proceeding.
B
The respondents contended that the decree in question could not be
held to be a nullity as the Civil Court could not be having inherent lack of
jurisdiction, that Section 6 of the Act overrides the other provisions of the
Act and therefore the deemed settlement as contemplated u/s 6 on the
intermediary does not divest the intermediary of his right to recover C
possession and therefore the High Court was fully justified in directing
execution of the decree.

TI1e questions raised of consideration were (i) whether the decree in
question could be held to be a nullity and (ii) whether the plaintiff-decree
holder having lost his right of proprietorship in the property, the Execut- D
ing Court could refuse to execute- the decree.

Allowing the appeal, this Court

HELD: 1.1. On issuance of a notification under section 3(1) of the
Orissa Estate Abolition Act, the estate vests free from all encumbrances in E
the State Government. The pre-existing rights shall cease to exist and new
rights have been created under the Act. By virtue of section 6 the Homes-
teads of Intermediaries and buildings together with lands on which build-
ings stand in the possession of Intermediaries and used as golas, factories
or mills to be retained by them on payment of rent. But the pre-conditions F
in a deemed settlement for fixation of rent as contemplated under Section 6
must be satisfied namely the land must be in possession of the Intermediary
and the same must be in use as golas, factories or mills. Under sub-section
(3) of section SA if no claim is filed within the specified period then the right
to possess the land or building or structure, as the case may be, stand vested G
in the State Government by operation of the Act and thereupon the right to
make any such claim by the Intermediary stand extinguished. It is admitted
by the parties that the Intermediary had not filed any claim within the
stipulated period and infact no settlement of rent had been made with the
Intermediary under Section 6. Such a settlement could not have been made
as admittedly the defendants-judgment debtor was in possession of the H
1170 SUPREME COURT REPORTS [1996] 1 S.C.R.
f
A .land. This being the position, on and from the date of issuance of notifica-
tion under Section 3(1) of the Act that is 27th April, 1963, the Civil Court
loses jurisdiction in respect of the disputed property by operation of Section
39 of the Act and cons~quently the decree passed on 30th of March, 1965
must be held to be a nullity. Once a decree is held to be a nullity, the
principle of constructive res judicata will have no application and its in-
B validity can be set up whenever it is sought to be enforced or is acted upon
as a foundation for a right even at the stage of execution or in any collateral
proceeding. [1177-E-H; 1178-A-C]

1.2 The estate in question having been vested by virtue of notification
C under Section 3(1) of the Act and no claim having been made by the
intermediary for getting deemed settlement of fixation of rent, by operation
of sub-section 3 of section SA, the right of the Intermediary stand extin-
guished and therefore under such circumstances the Civil Court had no
jurisdiction to pass the decree in the year 1965. Consequently the decree
D in question is nullity and the executing court can refuse to execute the
decree. The High Court was in obvious t;.rror in directing execution of the
decree. (1179-G-H; 1180-A]

Suresh Kumar Mehta v. Gobind Ram Bohm, [1990] 1 SCC 193, relied
E on. '

1.3 The proprietary rights in an estate specified in the notification
passed from the proprietor and became vested in the State free from all
encumbrances and therefore after issue of the notification under Section
F 3 notwithstanding anything contained in any contract, grant or document
or any other law for the time being in force, all rights, title and interest
which a proprietor possessed on account of his proprietorship of the land
within the estate became vested in the State. Consequently the provisions
of the Act deprived the proprietor of his proprietary rights including the
right to recover possession over the land in the suit. The Executing Court
G has a right to refuse to execute the decree upholding that the decree has
became inexecutable on account of the change in law and its effect. In this
view of the matter the proprietory rights of the plaintiff Intermediary
became vested in the State of Orissa. The plaintiff could not execute the
decree for recovery of possession. Haji Sk. Subhan v. Madhorao, (1962]
H Supp. 1 SCR 123, relied on. (1180-B-F]
SABITRI DEi v. S.C. ROUT[PATIANAIK,J.j 1171

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2620 of A
1996.

From the Judgment and Order dated 19.4.93 of the Orissa High
Court in C.R. No. 403 of 1987.

P.N. Misra for the Appellants. B

Bijoy Anand Mohanti, Manoj Wad, Mrs. J.S. Wed and Ms. Usha
Reddy for the Respondents.

The Judgment of the Court was delivered by
c
PATIANAIK, J. Leave granted.

This appeal is directed against the judgment of the Orissa High
Court dated 19th April, 1993 in Civil Revision No. 403 of 1987 arising out
of a petition filed under Section 47 of the Code of Civil Procedure in D
Execution Case No. 110 of 1981. The judgment debtor is the appellant in
this Court. The deceased J ai Rout had filed a suit for recovery of posses-
sion in the Court of Munsif, Cuttack which was registered as Title Suit No.
243 of 1953, the same suit was decreed on 30th March, 1965. The decree
became final in as much as the appeal against decree was dismissed on the
ground of abatement and the said order of abatement was also sustained E
in Civil Revision No. 252 of 1974 by the order of the High Court dated
15th October, 1976. Jn the meantime the suit property which is admittedly
an intermediary estate stood vested with State of Orissa by virtue of a
notification dated 27th April, 1963 under Section 3(1} of the Orissa Estate
Abolition Act (hereinafter referred to as 'the Act'). The plaintiff - decree F
holder deceased Rai Rout levied execution by filing an application which
was registered as Execution Case No. 110 of 1981. The judgment debtor
filed an objection under Section 47 challenging the executability of the
decree in question. The executing court by its order dated 10th March,
1987 allowed the application under Section 47, C.P .C. filed by the judgme;,t
debtor and dropped the execution case on a finding that the property in
G
question has been vested in the State Government and is no longer avail-
able to be executed under the decree. The decree-holder, deceased Jai
Rout challenged the said order of the Executing Court by filing a Revision
in the High Court. During the pendency of said Revision, decree holder
having died, the legal representatives were substituted who are t_he respon- H
1172 SUPREME COURT REPORTS [1996] 1 S.C.R.

A dents in this appeal. The High Court came to the conclusion that not-
withstanding the vesting of the estate under the Act, the question whether
the right of the decree holder had extinguished is not open to be raised in
the execution proceeding because of the principle of constructive res
judicata. The High Court also came to the conclusion that the decree in
question cannot held to be a nullity as the Civil Court had the jurisdiction
B in the suit for recovery of possession and Section 39 of the Act does'! take
away that jurisdiction. With these conclusions the order of the Munsif
having been set aside and the executing court having been directed to
execute the decree, the judgment debtors are in appeal to this Court.

C Mr. P.N. Misra, learned counsel appearing for the appellant con-
tends that the suit in question having been filed on the basis of the
proprietary right of the plaintiff and that right having vested in the State
free from all encumbrances on and from the date of notification under
Section 3 of the Act dated 27th April, 1963, the decree holder did not have
D any existing right in the property and therefore is not entitled to execute
the decree in question and the High Court committed error in brushing
aside this question by applying the principle of res judicata. Mr. Misra
further contended the notification under Section 3(1) of the Act having
been issued on 27th April, 1963 and the property in question not having
been settled with the intermediary under Section 6 of the Act, the Civil
E Court had no jurisdiction to pass a decree in March, 1965 and thus the
decree in question is a nullity. The principle of res judicala will not be
attracted and invalidity of the decree can be set up whenever it is.sought
to be enforced or acted upon as a foundation for a right even at the stage
of execution or in any collateral proceeding. Mr. Mohanty, learned counsel
F appearing for the respondents on the other hand contended that the decree
in question cannot be held to be a nullity as the Civil Court cannot be said
to be having inherent lack of jurisdiction. He also contended that Section
6 of the Act overrides the other provisions of the Act and therefore the
deemed settlement as contemplated under Section 6 on the intermediary
does not divest the intermediary of his right to recover possession and in
G this view of the matter the High Court was fully justified in directing
execution of the decree in question.

Having heard the learned counsel for the parties and on examining
the different provisions of the Orissa Estate Abolitions Act, we find
H sufficient force in both the contentions raised by Mr. Misra, learned
\
\

SABITRI DE! v. S.C. ROUT [PATIANAIK, J.) 1173

counsel for the appellant. Two questions really arise for our consideration: A

(1) Whether the decree in question can be held to be a nullity ?

(2) Whether the plaintiff - decree holder having lost his right of
proprietorship in the property, the Executing Court can refuse to execute
the decree ? B

For adjudicating both these questions it will be necessary to examine
the different provisions of Orissa Estate Abolition Act and accordingly the
relevant provisions of the Act are extracted hereinafter in extenso. Section
3 of the Act state thus :
c
"(Section - 3) Notification vesting an estate in the State :

1. The State Government may, from time to time by notification,
declare that the estate specified in the notification has passed to
and become vested in the State free from all encumbrances.
D
2. The notification referred to in sub-section (1) shall contain
particulars of the estate including the touzi number, if any, and the
name and the address of the Intermediary as recorded in t'he
registers maintained by the Collector, or as far as is otherwise
ascertainable by him and shall be published in the Gazettee and E
shall be affixed in a conspicuous place for a period of not less than
fifteen clear days in the office of the Collector.

3. Such publication shall be conclusive evidence of the notice of
the declaration to everybody whose interest is affected by it."
F
Section 3A of the Act state thus :

"(Section-3A) Vesting of Intermediary interest. (1) Without
prejudice to the powers under the last preceding section, the State
Government may by notification declare that the intermediary G
interests of all Intermediaries or a class or classes of Intermediaries
in the whole or a part of the State have passed to and become
vested in the State free from all encumbrances.

(2) The notification referred to in sub-Section (1) shall be publish-
ed in the Gazette and on such publication shall be conclusive H
1174 SUPREME COURT REP OR TS [1996] 1 S.C.R.

A evidence of the notice of the declaration to everybody whose
interest is affected thereby.

Section 6 of the Act state thus :

"(Section-6) Homesteads of Intermediaries and buildings together
B with lands on which such buildings stand in the possession of
Intermediaries and used as galas, factories or mills be retained by
them on payment of rent :

(1) With effect from the date of vesting, all homesteads comprised
in estate and being in the possession of an Intermediary on the
c date of such vesting, and such buildings or structures together with
the lands on which they stand, other then any buildings used
primarily as offices or kutcheries or rest houses for estate servants
on duty as were in the possession of an Intermediary at the
commencement of this Act and used as golas (other than galas
D used primarily for storing rent in kind), factories or mills for the
purpose of trade, manufacture or commerce, or used for storing
grains or keeping cattle or implements for the purpose of agricul-
ture and constructed or established and used for the aforesaid
purposes before the 1st day of January, 1946, shall, notwithstanding
anything contained in this Act, be deemed to be settled by the
E
State Government with such Intermediary and will all the share-
holders owning the estate, who shall be entitled to retain possession
of such homestead and of such building or structures together with
the lands on which they stand, as tenants under the State Govern-
ment subject to the payment of such fair and equitable ground-rent
F as may be determined by the Collector in the prescribed manner:

Provided that where the Intermediaries have come to any
settlement among themselves regarding the occupation of buildings
and file a statement to the effect before the Collector, the buildings
shall be deemed to have been settled with the Intermediaries
G according to that settlement ;

Provided further that homesteads in actual possession of the
Intermediary shall be settled with him free of ground-rent in those
areas where no ground-rent is charged under the existing law on
H homestead lands.
SABITRIDEiv. S.C. ROUT[PATIANAIK.J.) 1175

2. (.................. ) A

• 3. Notwithstanding anything contained in sub-section (1), where an
Intermediary constructed a building or structure in his estate after
the 1st day of January, 1946 and used it on the date of vesting for
the purposes mentioned in sub-section (1), he may be entitled to
B
retain possession of such building or structure together with the
land on which it stands as a tenant under the State Government
subject to the payment of ground-rent as provided in sub-section
(1) only if the Collector, after an enquiry, is satisfied that it is
constructed or used for a bona fide purpose and not with a view
to defeat the provisions of Section 5 of this Act." c
Section 8A of the Act state thus :

"(Section-SA)" Filing of claims under sections 6, 7 and 8 and
dispute relating thereto :
D
(1) The Intermediary shall file his claim in the prescribed manner
for settlement of fair and equitable rent in respect of lands and
buildings which are deemed to be settled with him under section
6 or Section 7 before the Collector within six months from the date
of vesting. E
2. Any person who is discharged from the conditions of personal
service under sub-section (3) of Section 8 may file his claim in the
prescribed manner before the Collector within six months from the
date of vesting for settlement of the lands held under the terms
and conditions of such service : F

Provided that the Collector shall, as soon as may be after any
such claim under sub-section (1) or sub-section (2) is filed, give
public notice thereof by beat of drum in the appropriate locality
and by placards posted at such conspicuous places as he deems G
fit, inviting objections from persons interested;

Provided further that in respect of estates which have vested
in the State Government prior to the date of commencement of
the Orissa Estates Abolition (Second Amendment), Act, 1957,
(Orissa Act 3 of 1958), the claims mentioned in sub- sections (1) H
/
1176 SUPREME COURT REPORTS (1996) 1 S.C.R.

A and (2) shall be filed before the Collector within a period of six
months from the said date :

Provided also that the State Government may further extend
the period specified in the last preceding proviso up to a maximum
period of one year for any sufficient cause in any case or cla'5 of
B cases;

Provided also that the claims on behalf of an Intermediary in
respect of any estate which has vested in the State Government or
after the 18th day of March, 1974 but before the date of commen-
c cement of the Orissa Estates Abolition (Amendment) Act, 1974,
may where such claim relates to a trust estate, be filed before the
Collector within a period of six months from the date of commen-
cement of the said Act;

Provided also that such claim as aforesaid which has been filed
D after the 18th day of September, 1974 and before the date of
commencement of the said Act shall, for all purpose, be treated
as a claim filed within the period of limitations.

3. On the failure of filing the claims within the period specified
under this section the provisions of clause {h) of section 5 shall,
E
notwithstanding anything to the contrary in Sections 6, 7 and 8,
apply as if the right to possession of the lands or buildings or
structures, as the case may be, had vested in the State Government
by the operation of this Act and thereupon the right to make any
such claim as aforesaid shall stand extinguished:
F
Provided that when such failure is due to the pendency of
proceedings in a Court of Law in which the validity of any notifica-
tion under section 3 or 3-A is in dispute, the State Government
may by order specially made in that behalf, extend the period for
filing of the claim.
G
4. Any person disputing the claim as to the extent or possession
of such lands or buildings or structures, as the case may be, may
file an objection before the Collector within three months from the
date of the public notice under sub-section (2) of such claim and
H the Collector shall, prior to the determination of rent under Sec-
SABITRI DE!v. S.C. ROUT[PATIANAIK.J.J 1177

tions 6, 7 and 8, enquire into the matter in the manner prescribed A
and pass such order as he deems just and proper.

5. Without prejudice to the provisions contained in sub-section (4),
where a claim in respect of any estate is made by the Intermediary
on the ground that it is a trust estate, the Collector shall, whether
or not any objection is filed under the said sub-section. make a B
reference to the Tribunal constituted under Section 8-D for deter-
mining whether the estate is a trust estate or not and shall act
according to the orders passed by the said Tribunal.

Provided that in the case of any estate referred to in the proviso C
to Clause (oo) of Section 2, no such reference shall be necessary.

Section 39 of the Act state thus :

"(Section - 39) Bar to jurisdiction of Civil Courts in certain matters:
No suit shall be brought in any Civil Court in respect of any entry D
in or omission from a Compensation Assessment Roll or in respect
of any order passed under Chapters II to VI or concerning any
matter which is or has already been the subject of any application
made or proceedings taken under the said Chapters."

Coming to the first question, it is apparent that on issuance of a E
notification under Section 3(1) of the Act, the estate vest free from all
encumbrances in the State Government. The pre- existing rights shall cease
to exist and new rights have been created under the Act. By virtue of
section 6 the Homesteads of Intermediaries and buildings together with
lands on which buildings stand in the possession of Intermediaries and used F
as golas, factories or mills to be retained by them on payment of rent. But
the pre conditions in a deemed settlement for fixation of rent as con-
templated under Section 6 must be satisfied namely the land must be in
possession of the Intermediary and the same must be in use as galas,
factories or mills. Under sub-section (3) of section SA if no claim is filed G
within the specified period then the right to possess the land or building
or structure, as the case may be, stand vested in the State Government by
operation of the Act and thereupon the right to make any such claim by
the Intermediary stand extinguished. It is admitted by the parties that the
Intermediary had not filed any claim within the stipulated period and infact
no settlement of rent had been made with the Intermediary under Section H
1178 SUPREME COURT REPORTS [1996] 1 S.C.R.

A 6. Such a settlement could not have been made as admittedly the defen-
dants - judgment debtor is in possession of the land. This being the ~-

position, on and from the date of issuance of notification under Section
3(1) of the Act that is 27th April, 1963, the Civil Court loses jurisdiction in
respect of the disputed property by operation of Section 39 of the Act and
consequently the decree passed on 30th of March, 1965 must be held to
B
be a nullity. Once a decree is held to be a nullity, the principle of
constructive res judicata will have no application and its invalidity can be
set up whenever it is sought to be enforced or is acted upon as a foundation
for a right even at the stage of execution or in any collateral proceeding.
. This question no longer remains res integra and has been so held in the
C case of Sus/Ji/ Kumar Mehta v. Gobind Ram Bohra reported in [1990] 1
SCC p. 193 to which one of us (brother Ramaswamy, J .) was a member. It
has been held in the aforesaid case :

'Thus it is settled law that normally a decree passed by a court of
competent jurisdiction, after adjudication on merits of the rights
D
of the parties, operates as res judicata in a subsequent suit or
proceedings and binds the parties or the persons claiming right,
title or interest from the parties. Its validity should be assailed only
in an appeal or revision as the case may be. In subsequent proceed-
ings its validity cannot be questioned. A decree passed by a court
E without jurisdiction over the subject matter or on other grounds
which goes to the root of its exercise or jurisdiction, lacks inherent
jurisdiction. It is a coram non judice. A decree passed by such a
court is a nullity and is non est. Its invalidity can be set up whenever
it is sought to be enforced or is acted upon as a foundation for a
right, even at the stage of execution or in collateral proceedings.
F The defect of jurisdiction strikes at the authority of the court to
pass a decree which cannot be cured by consent or waiver of the
party. If the court has jurisdiction but there is defect in its exercise
which does not go to the root of its authority, such a defect like
pecuniary or territorial could be waived by the party. They could
be corrected by way of appropriate plea at its inception or in
G appellate or revisional forums, provided law permits. The doctrine
of res judicata under Section 11 CPC is founded on public policy.
An issue of fact or law or mixed question of fact and law, which
are in issue in an earlier suit or might and ought to be raised
between the same parties or persons claiming under them and was
H adjudicated or allowed uncontested becomes final and binds the
\
\

SABITRI DEiv. S.C. ROUT[PATIANAIK. J.] 1179

parties or persons claiming under them. Thus the decision of a A
competent court over the matter in issue may operate as res
judicata in subsequent suit or proceedings or in other proceedings
between the same parties and those claiming under them. But the
question relating to the interpretation of a statute touching the
jurisdiction of a court unrelated to questions of fact or law or mixed
questions docs not operate as res judicata even between the parties B
or persons claiming under them. The reason is obvious; a pure
question of law unrelated to facts which are the basis or foundation
of a right, cannot be deemed to be a matter in issue. The principle
of res judicata is a facet of procedure but not of substantive law.
The decision on an issue of law founded on fact in issue would
operate as res judicata. But when the law has since the earlier
c
decision been altered by a competent authority or when the earlier
decision declares a transaction to be valid despite prohibition by
law it does not operate as res judicata. Thus a question of jurisdic-
tion of a court or of a procedure or a pure question of law
unrelated to the right of the parties founded purely on question of D

- fact in the previous suit, is not res judicata in the subsequent suit.
A question relating to jurisdiction of a court or interpretation of
provisions of a statute cannot be deem~ to have been finally
determined by an erroneous decision of a court. 1"herefore, the
doctrine of res jullicata does not apply to a case of decree of nullity.
E
If the court inherently lacks jurisdiction consent cannot confer
jurisdiction. Where certain statutory rights in a welfare legislation
are created, the doctrine of waiver also does not apply to a case
of decree where the court inherently lacks jurisdiction."

The ratio of the aforesaid case fully applies to the facts and cir-
cumstances of the case in hand. Mr. Mohanty appearing for the respon- F
dents did not challenge the proposition of law but contended that Section
6 of the Act confers a deemed right of settlement with the Intermediaries
in respect of the disputed property and that provision overrides the other
provisions of the Act and therefore Section 39 of the Act will have no
application. We are unable to persuade ourselves to agree with the sub- G
mission made by Mr. Mohanty as the said submission does not take into
consideration the provisions of sub-section (3) of section 8A. In our
considered opinion the estate in question having been vested by virtue of
notification under Section 3(1) of the Act and no claim having been made
by the Intermediary for getting deemed settlement of fixation of rent, by
operation of sub-section 3 of Section 8A, the right of the Intermediary H
1180 SUPREME COURT REPORTS [1996] l S.C.R.

A stand extir.gui... hed and tflerefore under such circumstances the Civil Court
had.no jurisdiction to pa'5 the decree in the year 1965. Consequently the .;..
decree in question is nullity and the executing court can refuse to execute
the decree. The High Court \Vas in obvious error in directing execution of
the decree.

B So far as the second question is concerned, the san1c also has been
directly answered by a decision of this Court in the case of Haji Sk. Subhan
v. Madhorao, [1962] Supp. l SCR P.123. The identical provisions of Mad-
hya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated
Lands) Act, 1950 was being considered by this Court. This Court came to
hold that the proprietary rights in an estate specified in the notification
c passed from the proprietor and became vested in the State free from all
encumbrances and therefore after issue of the notification under Section 3
not\vithstanding anything contained in any contract, grant or document or
any other law for the time being in force, all rights, title and interest which
a proprietor possessed on account of his proprietorship of the land within
D the estate became vested in the State. Consequently the provisions of
Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals,
Alienated Lands) Act, 1950 deprived the proprietor of his proprietary
rights including the right to recover possession over the land in the suit.
This Court also further held that the Executing Court has a right to refuse
to execute the decree upholding that the deer°" has became inexecutable
E on account of the change in law and its effect. What has been stated by
this Court in relation to the provision of the Madhya Pradesh Abolition of
Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 would
have full application to the provisions of the Orissa Estate Abolitions Act
with \Vhich \Ve are concerned in the present case. In this view of the matter
the proprietary rights of the plaintiff Intermediary became vested in the
F State of Orissa. The plaintiff could not execute the decree for recovery of
possession.

In our considered opm10n the Executing Court rightly refused to
execute the decree and the High Court was in error in setting aside the
G said order of the Executing Court. In the aforesaid premises the order of
the High Court passed in Civil Revision No. 403 of 1987 is set aside. This
appeal is allowed. The execution proceeding stands annulled. Th.ere will
be no order as to costs. -:

R.A. Appeal allowed.