PETITIONER:
SABITRI DEI AND OTHERS
Vs.
RESPONDENT:
SARAT CHANDRA ROUT AND OTHERS
DATE OF JUDGMENT: 02/02/1996
BENCH:
G.B. PATTANAIK (J)
RAMASWAMY, K.
CITATION:
1996 SCC (3) 301 JT 1996 (2) 1
1996 SCALE (1)714
ACT
HEADNOTE
JUDGMENT
JUDGMENT PATTANAIK. 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 Execution Case No. 110 of 1981. The judgment debtor is the appellant in this Court. The deceased Jai Rout had filed a suit for recovery of possession 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 in Civil Revision No. 252 of 1974 by the order of the High Court dated 15th October, 1976. In 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 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 judgment debtor and dropped the execution case on a Indian that the property in question has been vested in the State Government and is no longer available 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 the respondents in this appeal. The High Court came to the conclusion that notwithstanding 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 in the suit for recovery of possession and section 39 of the Act doesn’t 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.
Mr. P.N. Misra, learned counsel appearing for the appellant contends 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 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 Court had no jurisdiction to pass a decree in March, 1965 and thus the decree in question is a nullity. 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. Mr. Mohanty, learned counsel appealing 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 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 sufficient force in both the contentions raised by Mr. Misra, learned counsel for the appellant. Two questions really arise for our consideration: 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?
For adjudicating both these questions it will be necessary to examine the different spositions 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:
"(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.
2. The notification referred to in
sub-section (1) shall contain
particulars of the estate including
the fouzi number, if any, and the
name and the address of the
Intermediary as recorded in the
registers maintained by the
Collector, or as far as is
otherwise ascertainable by him and
shall be published in the Gazette
and 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 declaration to everybody whose
interest is affected by it."
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 be notification
declare that the intermediary
interests of all Intermediaries or
a class or classes of
Intermediaries or a class or
classes of Intermediaries in the
whole or a part of the State have
passed to an become vested in the
State free from all encumbrances.
(2) The notification referred to
in sub-Section (1) shall be
published in the Gazette and on
such publication shall be
conclusive 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 with lands on which such
buildings stand in the possession
of Intermediaries and used as
goals, factories or mills to be
retained by them on payment of
rent:-
(l) With effect from the date of
vesting, all homesteads comprised
in estate and being in the
possession of an Intermediary on
the date of such vesting, and such
buildings or structures together
with the lands on which they stand.
other than any buildings used
primarily as offices or kutcheries
or rest houses for estate servants
on duty as were in the possession
of an lntermediary at the
commencement of this Act and used
as goals (other than goals 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
agriculture 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 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 Government subject to the
payment of such fair and equitable
ground-rent 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 according to that
settlement;
Provided further that
homesteads in actual possession of
the Intermediary shall be settled
with him free of groundrent in
those areas where no groundrent is
charged under the existing law on
homestead lands.
2. ( ... ....... .... )
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(l), he may be entitled to
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."
Section 8A of the Act state thus:
"(Section-8A) Filing of claims
under sections 6, 7 and 8 and
dispute relating thereto:-
(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.
2. Any person who is discharged
from the conditions of personal
service under sub-section (3) of
Section 3 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:
Provided that the Collector
shall, as soon as may be after any
such claim under sub-section (l) 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 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) 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
class of 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 commencement
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
commencement of the said Act;
Provided also that such claim
as aforesaid which has been filed
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,
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:
Provided that when such
failure is due to the pendency of
proceedings in a Court of Law in
which the validity of any
notification 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.
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 of the public notice under sub-
section (2) of such claim and the
Collector shall, prior to the
determination af rent under
Sections 6. 7 a 8, enquire into
the matter in the manner prescribed
and pass such order as he deems
just and proper.
5. Without prejudice to the
provisions contained in sub-
section (4), where a respect of any
estate is made by the Intermediary
on the ground that it is estate,
the Collector shall, whether or not
any objection is filed under the
said sub-section make a reference
to the Tribunal constituted under
Section 8-D for determining 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 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
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 notification under Section 3(1) of the Act, the estate vests 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 as goals, 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 contemplated under Section 6 must be satisfied namely the land must be in use as goals, factories or mills. Under subsection (3) of section 8A 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 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 mad with the Intermediary under Section 6. Such a settlement couldn’t have been made as admittedly the defendant judgment debtor is in possession of the land. This being the position, on and from the ate of issuance of notification under Section 3(1) of the Act that is 27th April,, 1963, the Civil Court looses jurisdiction in respect of the disputed property by operation of Section 39 of the Act and consequently the decree passed on 30th of the 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 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 case of Sushil Kumar Mehta vs. Gobind Ram Bohra reported in (1990) 1 S.C.C. 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 of the parties, operates as
res judicata in a subsequent suit
or proceedings and binds the
parties or and 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 proceedings its validity
cannot be questioned. A decree
passed by a court 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. 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 nor go to the root of
its authority, such a defect in its
exercise which does not go to the
root of its authority, such 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
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 suit or might
and ought to be raised claiming
under them and was adjudicated or
allowed uncontested becomes final
and binds the parties or persons
claiming under them. Thus the
decision of a may operate as res
judicata in subsequent 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 unrelating to the
jurisdiction of a court unrelated
to questions of fact or as res
judicata even between the parties
reason is obvious; a pure question
of law unrelated to facts which are
the basis or 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 decision been
altered by a com patent 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 jurisdiction of a
court or of a E procedure or a
pure question of law unrelated to
the right of the parties founded
purefy on question of 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
- deemed to have been finally
determined by an erroneous
decision of a court - Therefore,
the doctrine of res judicata does
not appl-y to a case of decree of
nullity. If the court inherently
lacks jurisdiction consent cannot
confer jurisdiction. Where certain
statutory X ; ; 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 circumstances of the case in hand. Mr. Mohanty appearing for the respondents 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 submission 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 lntermediary stand extinguished and therefore under such circumstances the Civil Court had no jurisdiction of pass 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 was in obvious error in directing execution of the decree.
So far as the second question is concerned, the same also has been directly answered by a decision of this Court in the case of Haji Sk. Subhan vs. Madhorao, (1962) Supp. l S.C.R. P. 123. The identical provisions of Madhya 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 passed from the proprietor and became vested in the state free from all encumbrances and therefore after issue of the notification under Section 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 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 decree has became inexecutable 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 which we are concerned in the present case. In this view of the matter the proprietary rights of the plaintiff Intermediary became vested in the State of Orissa. The plaintiff could not execute the decree for recovery of possession.
In our considered opinion the Executing Court rightly refused to execute the decree and the High Court was in error in setting aside the 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. There will be no order as to costs.