Badal Sethi vs Suresh Chandra Dutta

R.N. Misra, J.—This appeal by the judgment-debtor is directed against the appellate order of the learned District Judge of Puri reversing the order of the executing Court.

2 The short facts necessary for the disposal of the appeal are these: The Respondent obtained a decree in Title Suit No. 4 of 1958 in the Court of the Munsif at Puri against the Appellant''s grandfather for eviction from a house situated within the town of Puri on the ground that he was a monthly tenant and such tenancy had been determined by notice. Respondent levied execution of that decree in execution case No. 98 of 1971. Upon notice, the Appellant as judgment-debtor filed objection against execution which came to be, registered as miscellaneous Case No. 276 of 1972. Subsequently, a second objection was filed u/s 47 of the CPC in 1974 on the ground that the Appellant had in the meantime been declared as a raivat in respect of the property in dispute u/s 9 of the Orissa Land Reforms Act and this objection came to be registered as Miscellaneous Case No, 13 of 1974. The decree-holder registered both the miscellaneous cases contending that the order of the Revenue Officer under the Land Reforms Asst. was in appeal and it was further contended that the order u/s 9 was invalid. Both the miscellaneous cases were Vested to 15-4-1916 for hearing. judgment debtor-Appellant took no steps in these miscellaneous cases on that day. Miscellaneous Case No. 276 of 1972 was dismissed for default. Respondent left the Court under the impression that the connected miscellaneous case No. 13 of 1974 would also be dismissed. In the afternoon, that miscellaneous case in the absence of the decree-holder was disposed of ex parte against him. The execution case was found not maintainable in view of the Revenue Officer''s order. Civil Revision No. 217 of 1976 was carried to this Court which ultimately was dismissed as not maintainable. Respondent thereupon filed miscellaneous Appeal No. 69 of 1976 in the Court of the learned District Judge. The appellate Court held:

.... The learned Munsif under the impugned order upheld this contention of Respondent, but it appears that he gave no reason in his order nor did he write a telling order. It will further appear, in view of the decision reported in Mahurilal Agarwalla v. Dusasan Sahu and Ors. 43 (1977) C.L.T. 681, that O.L.R. Act has no application to urban homestead property and as such the O.L.R. Court had no jurisdiction'' to declare the Respondent a raiyat in respect of the decretal property, which is undisputedly an urban homestead property. On this point alone, the impugned order is liable to be set aside and the Respondent''s petition u/s 47, CPC is liable to be rejected as not maintainable.

There is another equally strong point which makes the impugned order illegal. As discussed above, both the earlier misc. cases No. 276 of 1972 and later Misc. Case No. 13 of 1974 were filed on virtually same ground, namely that Respondent having been declared as raiyat in respect of the decretal property u/s 9, O.I.R. Act, acquired non-evictable right over the same and hence the decree for his eviction passed in the original suit was not executable. It is not disputed that both the cases were posted for hearing on 15-4-1976 and that the earlier misc. case was dismissed for default of the Petitioner, in presence of the opposite party. It is true that on that day, opposite party filed a petition for stay of the misc. case, in view of the pendency of his appeal in the O.L.R. Court against the order of the O.L.R. Collector u/s 9 of the O.L.R. Act, but strangely enough, the learned Munsif passed no order on this petition, but proceeded to call on the misc. case for hearing and dismissed it in the absence of the Petitioner. The learned Munsif having passed this order, dismissing Respondent''s earlier petition u/s 47, Code of Civil Procedure, the later petition under the same section and on same ground, was clearly barred by principles of constructive res judicata. This contention of the Appellants learned Advocate stands fully supported by the decision reported In Ramchandra Nahaka and Others Vs. Bharat Rana, ....

For the reasons indicated above the appellate Court reversed the order of the executing Court and dismissed the objections. This revering decision is assailed in appeal now.

A preliminary objection is raised against maintainability of the appeal on the ground that with the amendment of the CPC in 1977 and change of the definition of ''decree'' in Section 2(2) and consequential changes in Section 47 of the Code, the decision In a proceeding u/s 44 of the Code is not open to appeal in the present form. The Amendment Act has not taken away the right of appeal where the determination is before the passing of the Amendment Act. Section 97(2)(a) of the Amending Act provides that the amendment of Section 2(2) of the Code shall not affect any appeal against the determination of any question referred to in Section 47. The only material alteration introduced by amendment is in Section 99-A which provides that an order u/s 47 shall not be reversed or substantially varied on account of any error, defect or irregularity in any proceeding relating to such order unless the error, defect or irregularity has prejudicially affected the decision of the case. In view of this provision, there is no force in the preliminary objection. The appeal is maintainable.

The judgment-debtor resisted the execution application for eviction by contending that his application u/s 9 of the Land Reforms Act to treat him as a raiyat for the house in question had been allowed by the Revenue Officer. Section 9 of the Land Reforms Act, as far as material, provides:

(1) Every person who is a raiyat or a tenant in respect of any land but has no permanent and heritable rights in respect of any site on which his dwelling house or farm house stands, shall with effect from the commencement of this Act. be deemed to be a raiyat in respect of the whole of such site or a portion thereof not exceeding one-fifth of an acre whichever is less if he or his predecessor-in-interest has- .

(a) obtained permission, express or implied, from the person having permanent and heritable rights in the site and having right to accord permission for the construction of such house;

(b) built such house at his own expense.

judgment-debtor''s case is that he made an application u/s 9 of the Land Reforms Act and the Revenue Officer came to hold:

He (judgment-debtor) admitted again that Markanda Sethi was doing thatching and annual repair of the house and does not have any paper to show how Markanda Sethi occupied that house but said that Markanda Sethi has been staying in that house since 1943. Satyabadi Sahu (the d. w. 2) has said in his statement that he has seen Markanda Sethi staying in the suit house 30 years back.

It is, therefore, admitted that Markanda Sethi, the grandfather of the Petitioner, was in possession of the suit house along with the site for more than 30 years and the Petitioner being the grandson has also been staying in that house from the date of his birth till date. The terms and conditions under which Markanda Sethi occupied the house have not been proved by the opposite party although the decree for eviction against the Petitioner has been passed vide Ext. III dated 28.4.1960 which is prior to commencement of O. L. R. Act. Although the decree for eviction has been passed since 1960. it has not been given effect to for 13 years which have passed in the meantime....

The decree of the Civil Court clearly indicates that Appellant''s grandfather was a monthly tenant and the tenancy was not agricultural. A Bench of this Court in the case of Mahurilal Agarwalla v. Dusasan Saku and others1has indicated that land under the Orissa Land Reforms Act is not to include urban homestead. It may be that though the property would be located within an urban area, yet'' it may be so connected within the agricultural operations that it might come under the purview of that Act. Dealing with this aspect in the reported decision, this Court indicated:

.... If a reference be made to the several provisions of the statute including Sections 14, 37-A, 37-B, 39 and 45. A of the Act, there can be no doubt that the legislative intention is to deal with agricultural lands and lands and homesteads connected there with, only. Unless within the definition of ''land'' the disputed property is covered, the Act would have no application at all.

The decree of the Civil Court which is under execution in clear terms shows that it was a monthly tenancy and upon determination of the same by notice to quit, the suit for eviction had been filed. The decree itself nullifies the stand of the judgment-debtor that it was an agricultural tenancy. In that view of the matter the Revenue Officer had no jurisdiction to deal with the property u/s 9 of the Act and the order conferring occupancy status in respect of the disputed premises is non-est for lack of jurisdiction of the tribunal to deal with the property. In my view, the learned District Judge has come to the right conclusion on this point.

There is also force in the finding of the learned District Judge that the second application was barred by constructive res judicata in view of the dismissal of the first application u/s 47 of the Code raising similar ground. The submission of Mr. Patnaik for the Appellant that the second objection was on grounds different from those raised in the first appears not to be correct in view of the clear statement in the impugned appellate judgment that both the objections had raised similar contentions. The appellate order clearly shows that the earlier miscellaneous proceeding of 1972 had been dismissed in the earlier hours of the day and the miscellaneous proceeding of 1974 was taken up for hearing in the afternoon. The order of dismissal passed in the first miscellaneous proceeding has become final. In circumstances, the second objection becomes barred by constructive res judicata as found by the lower appellate Court.

There is no merit in the appeal and the same is accordingly dismissed. I direct both parties to bear their respective costs throughout.

Appeal dismissed.