Orissa High Court
Jai Rout vs Sabitri Dei And Ors. on 19 April, 1993
Equivalent citations: AIR1993ORI251, AIR 1993 ORISSA 251
Author: B.L. Hansaria
Bench: B.L. Hansaria
ORDER B.L. Hansaria, C.J.
1. A decree obtained from the trial Court and upheld by the first and second appellate (or revisional) Courts cannot be allowed Ordinarily and normally to be defeated at the execution stage, because that would render all the previous effort and exercise futile. Time, money and energy of everybody would be a loss. Decrees obtained from Courts of competent jurisdiction cannot be allowed to be rendered paper tigers; they have to be treated as alive and kicking. The only exception known to law in this regard is where a decree can be said to be a nullity, the reason for the same being that there would really be no decree to execute; and it is because of this that the executing Court would not incur the repreach that it is going behind the decree. This is well established law and if any citation is needed the same is Sunder Dass v. Ram Parkash, AIR 1977 SC 1207, in paragraph 3 of which this enunciation finds place.
2. The important question is as to when a decree can be said to be a nullity. This question too is no longer res integra as right from Kiran Singh y. Chaman Paswan, AIR 1954 SC 340 : (1954 All LJ 551) it has been stated that a decree passed by a Court without jurisdiction is a nullity and its invalidity could, therefore, be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution. From this it follows that an executing Court cannot question the legality or correctness of the decree, as observed in paragraph 3 of Sunder Dass (supra). As to when lack of jurisdiction can also be a ground to stall execution of a decree came up for decision in Hira Lal v. Kali Nath, AIR 1962 SC 199. In that case, it was held that the invalidity of a decree can be challenged in an execution proceeding only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which would have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it.
3. In that case, the lack of territorial jurisdiction was not held to be a case of inherent lack of jurisdiction, because it was held that objection relating to local jurisdiction does not stand on the same footing as an objection to the competence of a Court to try a case, because competence goes to the very root of jurisdiction whereas an objection relating to local jurisdiction can be waived which liberty was said to have given a statutory recognition by Section 21 of the Code of Civil Procedure.
4. Facts of the Case.
In the present case, the petitioner had instituted Title Suit No. 243 of 1953 in the Court of First Munsif, Cuttack on 23-12-1953 for recovery of khas possession, which came to be decreed on 30-3-1965 on contest. The defendants challenged the decree in Title Appeal No. 134 of 1965, which was dismissed on 19-3-1974. That dismissal was challenged before this Court in Civil Revision No. 252 of 1974, to be dismissed on 15-10-1976. The decree as finally affirmed by this Court was sought to be executed in Execution Case No. 110 of 1981 in which a petition was filed under Section 47 of the Code of Civil Procedure, which was registered as Misc. Case No. 98 of 1982 stating that the execution case was not maintainable. The same has come to be accepted by the executing Court by its order dated 10-3-1987 on two grounds: (1) it was barred by limitation; and (2) the suit property having vested in the State under the provisions of the Orissa Estates Abolition Act, 1951 (for short, "the Act"), the decree-holder lost his right to execute the decree as the property was no longer available for execution. It is this order of the executing Court which has been assailed in this petition.
5. In so far as the bar of limitation is concerned, the same was rejected by the order passed on 26-2-1993 when this revision had come up for hearing for the reasons given in that order. The question whether the property was no longer available for execution, however, was not decided on that day as Shri Mohanty appearing for the petitioner prayed for some time to satisfy the Court that the view taken by the learned Munsif in this regard was not tenable. The prayer was allowed. The case was heard on this aspect on 12-3-1993 and 9-4-1993, the oral submissions made on which date were supplemented by a written note filed on 12-4-1993 by Shri Mohanty and on 14-4-1993 by Shri Mishra appearing for the judgment-debtors.
6. Is the decree a Nullity?
Shri Mishra has urged that as the decree was a nullity, the view taken by the learned Munsif is absolutely sound as there was no decree in the eye of law to execute. Let us see why this submission has been advanced and whether the same is tenable.
7. There is no dispute on facts that the suit property had come to be vested in the State Government under the provisions of the Act; that the same is a homestead land; and that the petitioner was an intermediary. In such a case, Section 6 of the Act gets attracted if the homestead be in possession of the intermediary. As to the possession, the submission of Shri Mohanty is that even if the land be in possession of a trespasser who has not perfected title by adverse possession, as is the case at hand, the requirement of possession visualised by Section 6 of the Act would be satisfied, as was held by a Bench of this Court in N.P. Singhdeo v. State of Orissa, AIR 1983 Orissa 39. This view was taken because Section 6 does not require "khas possession", of which Section 7 of the Act speaks, which has been defined in Section 2(j) of the Act. It was, therefore, held by the Bench in the aforesaid case that possession contemplated by Section 6 need not be personal cultivation and that an owner would be deemed to be in possession if the property is in possession of his lessees, licensees, permissive occupants and even trespassers until they have perfected title by adverse possession.
8. On the aforesaid facts, the applicability of Section 6 of the Act is not denied even by Shri Mishra. His contention, however, is that the petitioner having not invoked the provisions of Section 8-A of the Act within the stipulated time, which again is an admitted position, the right to claim settlement of the land stood extinguished, as a mentioned in Sub-Section (3) of that section. This proposition of law is not disputed by Shri Mohanty, because the same is the combined result of four decisions of this Court, namely, (1) Narasingha Charan v. Radha Gobinda, (1967) 33 CLT 655, (2) Debaraj Tuli v. Bimala Nepak, 1973 (1) CWR 670, (3) Krupasindhu Misra v. Gobinda Chandra, (1980) 50 CLT 393 (FB) : (AIR 1980 Orissa 199) and (4) Radhamani v. Brajamohan, (1984) 57 CLT 1 (FB): (AIR 1984 Orissa 77).
9. Despite the aforesaid being the position in law, Shri Mohanty submits that the decree could not have been regarded as a nullity because it was not a case where the objection was that the trial Court had no jurisdiction, but that the land was not available for execution of the decree passed in favour of the petitioner as it had stood vested in the Government. Shri Mishra, however, contends that the decree has to be regarded as a nullity because of the aforesaid inaction of the petitioner and strongly presses into service in this connection the decisions in Narasingha Charan and Debaraj Tuli (supra) and the case of Radha Dei v. Lalit Bihari, (1991) 71 CLT 17 : AIR 1991 Orissa 36 apart from mentioning about the view taken in Second Appeal No. 303 of 1969 disposed of on 2-4-1973.
10. Let it be seen whether the submission of Shri Mishra can be accepted on the basis of the aforementioned four decisions. In Narasingha Charan, it was observed that an intermediary in a case of the present nature, has to work out his right under the provisions of the Act, like Section 6, and he cannot file a suit for khas possession because of the bar created by Section 39 of the Act. This observation had come to be made. Because the intermediary there had taken recourse to Section 6 and the matter was pending at the appellate stage. The Bench, therefore, observed that "(i) that view of the matter, the Civil Court had no jurisdiction to decide the matter which is now the subject-matter of an application pending before the revenue authorities."
11. Debaraj Tuli was also a case where the decree of the Civil Court had been passed while the proceeding under Section 8-A of the Act was pending, because of which it was held by the learned single Judge that the Civil Court, which had passed the decree, had no jurisdiction over the matter, as the right of the parties, if any, had to be worked out under the provisions of the Act. It is because of this that the decree was regarded as a nullity as it was held that the Court passing the same had lacked inherent jurisdiction. In the present case, this is not the plea.
12. In this context, Shri Mohanty further urges that the mere fact that the petitioner had not invoked Section 8-A of the Act within the stipulated period cannot really be taken to have extinguished his right conferred by Section 6 of the Act, because of G.O. No. 14399-R dated 2-3-1964, which extended the time of making applications by the intermediaries under Section 8-A, which time limit was being extended from time to time by various official communications of the Government culminating in Revenue Department letter No. 4610 dated 18-1-1977, which stated that no further extension of time for filing applications for settlement of land to ex-intermediaries of vested estates, inter alia, under Section 6 of the Act should be granted and "settlement should be made by the suo motu action by the Tahsildar Without waiting for the petitions from the intermediaries......
...... .". According to Shri Mohanty, this shows that the right which had inhered in the petitioner under Section 6 of the Act to get the land settled with him has really not been lost for all times to come. The Tahsildar can well, by his suo motu action, settle the same with the petitioner. According to the learned counsel, the right to the settlement still exists; it is only inchoate. The force of the submission advanced by Shri Mohanty cannot be denied. In making this submission, reference has been made to a decision of this Court in Radhakrushna v. State of Orissa, 1973 (1) CWR 519, in which a circular of the present nature issued by the Government was held to be binding on all the revenue administrative authorities in the absence of any law to the contrary by further stating that these authorities cannot act in contravention of the direction given in such a circular. I have mentioned about this submission of Shri Mohanty only for the sake of completeness to put on record that the plea taken is also not fully tenable.
13. As to the third decision pressed into service by Shri Mishra, the same being Radha Dei (supra), which is also by a learned single Judge of this Court, the decree was regarded to be a nullity because the settlement of the suit land with the decree-holder (who was also an ex-intermediary) on the erroneous basis that he was in khas possession of the land by the date of vesting was held to be null and void because there was no controversy that the land had vested in the State Government and the same could have been settled with the ex-intermediary only if he would have been in khas possession of the land by the date of vesting. The basic requirement of khas possession being absent and no title having vested in the decree-holder on the basis of an invalid order, it was held that the decree for eviction which had been passed solely on the basis of the land being with the landlord was invalid and inoperative. This position was regarded as re-enforced from the fact that subsequently the very same authority (Tahsildar) acknowledged the mistake in the order previously passed by him and held that the petitioners (judgment-debtors) were entitled to remain in possession of the land. It was on the basis of these two undisputed facts that the decree was held to be a nullity and non-executable.
14. Shri Mohanty has urged in his written submission that the aforesaid decision needs reconsideration. (Though this submission has been made relating to Debaraj Tuli also, that case, however, stands on a different footing as therein the decree was regarded as a nullity because of the inherent lack of jurisdiction of the Civil Court, which, even according to Shri Mohanty, would make a decree nullity. So, there can be no question of reconsideration of the decision in that case). If I would have felt the need for reconsideration of the ratio of Radha Dei, as urged by Shri Mohanty. I would have referred the case to the Division Bench as sitting singly it is not open to me to reconsider a decision of acognate Bench. But, I am not doing so because the two facts which were found by the learned Judge in Radha Dei's case had left no doubt in his mind that the settlement was invalid and inoperative, whereas in the present case, no reliance has been placed on the settlement of the land on the petitioner, which right also has not got extinguished but is inchoate as noted above. The facts of the present case are entirely different and despite what has been stated in Radha Dei's case, it is open to this Bench to hold that what has been stated therein has no application to the instant, case. There, is another ground for my not referring the matter to a larger Bench, as, according to me, the reconsideration is not necessary to give relief to the petitioner, because, as being stated later, the question whether the right of the petitioner had extinguished is not open to be raised in this proceeding because of the principle of constructive res judicata.
15. The decision to be mentioned paranthetically by Shri Mishra is that of a learned single Judge in Second Appeal No. 303 of 1969 disposed of on 2-4-1973, in which the settlement made by the Collector after the period of limitation prescribed by Section 8-A of the Act had expired was said to be without jurisdiction, because of which it was held that the finality envisaged by Section 39 of the Act did not extend to that order, the result of which was said to be that Civil Court's jurisdiction was not barred. In the present case, we are on a different point, and so, I have characterised mentioning of this decision as 'paranthetical'.
16. Because of what has been stated above, I am of the view that it cannot be held that the decree was a nullity in the present case. It would bear repetition to say that the plea taken in the case at hand is not that the Court which had passed the decree had lacked inherent jurisdiction, but that the land having vested in the State could not be made available to the petitioner for his possession.
17. Constructive res judicata.
The aforesaid is not all which Shri Mohanty has to say against the view taken by the learned Munsif as an executing Court. Learned counsel has a further submission. The same is that the aforesaid plea is barred by constructive res judicata. To support this submission, reliance has been placed on a decision of a learned single Judge of this Court in Ananta Jena v. Deity Shri Gopinath, AIR 1979 Orissa 37, wherein at the stage of execution of the decree a plea was taken that the land having vested in the State Under the Act, the decree holder was not entitled to execute the same. In that case, the estate had vested during the period when second appeal was pending before this Court. But, as this point was not taken in that appeal, it was observed in paragraph 5 that the judgment-debtor was precluded from raising the point in execution.
18. Shri Mishra, however, contends that if a decree be nullity, res judicata would have no operation, not to speak of constructive res judicata. Though in support of this submission no decision has been referred by Shri Mishra even in his written submission filed on 14-4-1993, it has been noticed by me that the most that can be said in favour of this submission is that if an order has been passed in violation of law and a Court is asked to execute such a decree and plea of constructive res judicata is taken, that would not be available, because in such a case it would really be a matter of refusal to infringe the taw and there can be no estoppel against law. This is the view expressed by Anantanarayanan, J. in his concurring judgment in the Full Bench case of Mohan Ram v. T.L. Sundararamier, AIR 1960 Mad 377. That there can be no estoppel against law is a well established principle which can be traced back to Surajmull v. Titon Insurance Co., AJR 1925 PC 83, which view came to be reiterated in Maritime Electric Co. v. General Dairies, AIR 1937 PC 114,
19. A learned single Judge of Allahabad High Court has, however, regarded the rule of consttuctive res judicata as a rule of estoppel in Natul Begam v. Hem Chandar, AIR I960 All 519, and has further stated in this regard in paragraph 10 that there can be no estoppel against statute. Whether the statement of law that constructive res judicata is a rule of estoppel is correct or not may not detain us for this case excepting pointing out that though sometimes res judicata is treated as a part of doctrine of estoppel, the two are essentially different inasmuch as "res judicata prohibits an inquiry in limine, whilst an estoppal is only a piece of evidence" as stated by Mahaud, J; in Sita Ram v. Amir Begam, (1886) 8 All 324, which decision has been noted at page 76 of Mulla's Code of Civil Procedure, 14th Edn. Vol. I under the heading "Res judicata and estoppel". Indeed, there is great deal of distinction between res judicata and estoppel, though the former is known in English law as estoppel by record. In the All India Reporter Commentaries on the Code of Civil Procedure, 9th Edn. Vol. I at page 225 under the heading "Distinction between res judicata and estoppel", four such points of distinction have been mentioned. These are: (1) the doctrine of res judicata results from a decision of the Court while estoppel results from the acts of parties themselves; (2) the rule of res judicata proceeds on grounds of public policy, viz., that there should be an end to litigation, while the rule of estoppel proceeds upon the doctrine of equity, that he who, by his conduct, has induced another to alter his position to his disadvantage, cannot turn round and take advantage of such alteration of the other's position; (3) the rule of res judicata prohibits an inquiry in limine and costs the jurisdiction of the Court to try the case while an estoppel is only a rule of evidence; and (4) the theory of res judicata is to presume conclusively the truth of the former decision while the rule of estoppel prevents a person from setting up what he calls the truth.
20. There being no infringement of law in the present case, the plea of constructive res judicata cannot be negatived on the ground that there is no estoppel against statute. May it be stated here also that the plea taken is not that the Civil Court had entertained the suit which was barred by Section 39 of the Act, but that the land having vested in the State was not available for execution. Had the first plea been raised, the matter might have been different.
21. Relying on the principle of constructive res judicata, Shri Mohanty has also urged that the decision of the learned Judge in Radha Dei's case (supra) not having taken note of this aspect may not be held as binding, more so, because that case has not taken note of the earlier decision rendered in Ananta Jena's case. As to this contention of Shri Mohanty. Shri Mishra has urged in his written submission that Ananta Jena's case had in its turn not taken note of the decision in Narasingha Charan and Debaraj Tuli, which were earlier. According to me, in none of the three decisions relied on by Shri Mishra, the question whether constructive res judicata would bar raising of the plea of jurisdiction having come for consideration, they cannot be regarded as decisions of this Court that such a plea would not be available at the time of execution. It is well known that the ratio of a case is what it decides, and not what logically follows from the observations made in it, as pointed out in paragraph 12 of State of Orissa v. Sudhansu Sekher, AIR 1968 SC 647 by referring to Earl of Malabury L.C.'s view as taken in Quinnv. Leathern, 1901 AC 495. The same view had been expressed in Osborne v. Row Latt, (1880) 13 Ch D 774, by stating that "the only thing in Judge's decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided", as noted approvingly by a Constitution Bench in Punjab Land Development & Reclamation Corporation Ltd. v. Presiding Officer, Labour Court, (1990) 3 SCC 682 (para 46).
22. In the aforesaid premises. I am in agreement with Shri Mohanty that the plea taken by the judgment-debtors in their petition under Section 47 of the Code of Civil Procedure regarding the property being not available because of it having been vested in the State Government under the provisions of the Act was really not available on the principle of constructive res judicata. It is worth pointing out that in Ananta Jana's case, the Court had stated about the judgment-debtor being precluded from raising the point though the estate had come to be vested under the Act at the state of second appeal, whereas in the present case even before the trial Court's decree had been passed the estate had come to be vested because that date is 27-4-1963 whereas the trial Court's decree is dated 30-3-1965. This point was thus not taken not only before the trial Court, but in the first appellate Court as well as before this Court in Civil Revision No. 252 of 1974. To allow this point to be taken for the first time in the executing Court could almost be a travesty of justice and would give a very long rope to judgment-debtors who after failing at all levels during trial put up pleas of non-executability which was very much available at the time of trial, which would be totally against larger interest of the society, because a litigation fought to the end at the trial stage would be set at naught by taking pleas available earlier and not taken either knowingly or even unknowingly. If constructive res judicata were not to be applied in such a case, very few decrees would attain finality and decrees would remain paper tigers, which cannot be allowed to happen.
23. In view of all that has been stated above, the second point on which the decree was held to be non-executable by the learned Munsif has to be set aside, which I hereby do. The result is that the petition is allowed and the executing Court is directed to proceed with the execution to its finality and this too most expeditiously as the title suit out of which the decree arises was filed in 1953 and we are in 1993. Four decades is too long a time for any litigant to wait and any further delay would be almost an act of disgrace. The delay of the type at hand is one which erodes faith of the people in our system of administration of justice, and we just cannot be parties to such devilish actions.