Jagan Jethya Lodhi vs Harakchand Samarathmal and another

C.P. Sen, J.—This is an appeal by the appellant-Judgment-debtor against the rejection of his objections regarding tenability of the execution proceedings by the Courts below.

A compromise decree was passed for specific performance of an agreement to sell the lands in suit and on deposit of the balance amount of consideration, the sale-deed was to be executed by the Judgment-debtor. But, as he failed to do so, the respondents filed an application on 18-11-1963 for execution of sale-deed and delivery of possession. On a notice being given, the appellant appeared on 25-3-64 and raised no objection regarding execution but sought a month''s time to pay the decretal amount. The application was rejected and no further steps were taken as the appellant absented himself, but on 23-4-66, he filed another application u/s 3 of M.P. Postponement of Execution of Decrees Act for staying the proceedings. Ultimately, a sale-deed was executed by the Court on 1-12-1967 and after some time when the decree for possession was sought to be executed, the present objection has been filed by alleging that the respondents owns about 309 acres of land as per order of the Collector, and, as such, the agreement of sale as well as the sale-deed are void and the decree is incapable of execution in view of the enactments of M.P. Ceilings of Agricultural Holdings Act, 1960 and in view of section 165 (4) (a) and (10) of the M.P. Land Revenue Code, 1959. The objections were overruled by the Courts below. It was held by the trial Court that as the agreement for sale was entered into by the parties on 20-1-1958, the same was such before the 1959 Code and the 1960 Ceiling Act came into force, and the decree has been passed by the Court on 29-4-1963 whereas the Ceilings Act has come into force on 15-11-1963. The lower appellate Court, on the other hand, held that the objections were barred by constructive res judicata because no objections were raised, at the time of the execution of the sale-deed and it cannot now be raised in the subsequent proceedings.

It is contended by the learned counsel for the appellant that the procedural rule of res judicata cannot take away the positive effects of provisions of law so as to make them nugatory and he relied on State of Punjab (Now Haryana) and Others Vs. Amar Singh and Another, , "that where a compromise goes against a public policy, prescription of a statute or a mandatory direction to the Court to decide on its own fundamental facts a razi cannot operate to defeat the requirement so specified or absolve the Court from the duty. The resultant order will be ineffective." On the other hand, the learned counsel for the respondents have contended that an executive Court cannot go behind the decree unless there was inherent lack of jurisdiction in the decree of the trial Court by relying on Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Others, .

The contentions raised by the learned counsel of both the parties are besides the point in issue. Here the pertinent question is as to whether in view of the corning into force of M.P. Ceilings on Agricultural Holdings Act, 1960, after passing of the decree, the decree has become inexecutable. Their Lord-ships of the Supreme Court in Haji Sk. Subhan Vs. Madhorao, have held as under:

The principle that the Executive Court could not question the decree and had to execute it as it stood, had not operation in the facts of the present case. The objection of the appellant was not with respect to the invalidity of the decree or with respect to the decree being wrong. His objection was based on the effect of the provisions of the Act which had depneved the respondent of his proprietary rights including the rights to recover possession over the land in suit and under whose provisions the respondent had obtained the right to remain in possession of it. In these circumstances, the executing Court could refuse to execute the decree holding that it had become inexecutable on account of the change in law and its effect.

This was a case under the M.P. Abolition of Proprietary Rights Act, 1951, and the effect of vesting of all rights of the proprietor in the State was considered here. So, it is evident that the objection raised by the Appellant can be entertained by looking into the subsequent changes in the provisions of law as to whether the suit lands have vested in the State and the respondents are deprived of all their rights therein.

It may be noted here that in the M.P. Ceilings on Agricultural Holdings Act, 1960, there is a prohibition over transfer from the date of publication of the Bill i. e. 14-9-59, by any holder of land holding land in excels of the ceiling limit but there is no such prohibition regarding transfer of land to a holder holding more than the ceiling limit but as per section 7, no holder shall hold more than 25 standard acres. u/s 12 of the Ceiling Act, all surplus land shall vest in the State absolutely free from all encumbrances with effect from the commencement of the agricultural year next following the date on which it is declared surplus. u/s 13, with effect from the date of vesting all rights, title and interest of the holder in the surplus land shall cease. u/s 46, jurisdiction of civil Court is barred to settle, decide or deal with any question to be dealt with by the competent authority under the Act. The Collector vide his order, dated 30th January 1965, has held that the respondents held 28.01 acres of land in excess of the ceiling limit. So, there can be no doubt that the lands sold as per decree to the respondents will he further in excess of the ceiling limit and, as such, these lands also will vest in the State Government. If that be so, the respondents all rights, title and interest in the suit lands and also right to take possession will be deemed to be extinguished after declaration be the Collector that they are holding lands in surplus. So, the decree for possession could not be executed against the Appellant if the order of the Collector has not been varied or reversed in appeal or revision. The prohibition contained in section 165(4)(a) of the M.P. L.R. Code, 1959), can have no application here because there is no ceiling limit fixed so far in the rules framed under the provisions of the Code as has been held in Gulabchand v. Mojiram 1966 JLJ 4.

Accordingly, the appeal is allowed, the orders of the Courts below are set aside and the case is remitted to the executing Court for determination of the question as to whether there is final determination by the Collector about the surplus lands held by the decree-holders and if so, then to dismiss the execution case, as all rights of the decree-holders in the suit lands have then vested in the State. The amount deposited by the Decree Holder in the Court to be refunded to them. Parties to bear their own costs.