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TMI Blog1996 (2) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs 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 constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 circums ..... X X X X Extracts X X X X X X X X Extracts X X X X
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