SABITRI DEI AND ORS. versus SARAT CHANDRA ROUT AND ORS.

Citation: [1996] 1 S.C.R. 1168 · Decided: 02-02-1996 · Supreme Court of India · Bench: K. RAMASWAMY · Disposal: Appeal(s) allowed

Judgment (excerpt)

/ 
A 
SABITRI DEi AND ORS. 
v. 
SARAT CHANDRA ROUT AND ORS. 
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• 
FEBRUARY 2, 1996 
B 
• 
[K. RAMASWAMY AND G.B. PATTANAIK, JJ.) 
OJissa Estate Abolition Act-Sections 3(1), 6, Sa, 39---Intennedimy es-
late-Notification u/s 3( lrEstate vests free from all encumbrances in State 
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Govemmelll-Wlien no claim filed within stipulated peJiod-No settlement of 
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rent 1nade with intennedia1y u/s 6-Civil Cozat losses jzaisdiction-Decree 
passed held to be nullity-P1inciple of const1Uctive res judicata not appiicable. 
The respondent plaintiff filed a title suit for recovery of possession 
in 1953. The suit was decreed in 1965 and the decree became final. In the 
D meantime the suit property which was an intermediary estate stood vested 
with State of Orissa by virtue of a notification dated 27.4.1963, issued u/s 
.,_
3(1) of the Orissa Estate Abolition Act. The plaintiff-decree holder, 
.. 
deceased levied execution. The respondent judgment debtor filed an objec-
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tion u/s 47 Civil Procedure Code, challenging the executability of the 
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decree. The executing court allowed the application and dropped the 
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execution case while holding that the property had been vested in the State 
Government and was no longer available to be executed under the decree. 
In Revisi9n, the High Court while setting aside the order of the Munsiff 
and directing the executing court to execute the decree held that the decree 
could not be held to be a nullity as the Civil Court had the jurisdiction in 
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the suit for recovery of possession and Section 39 of the Act did not take 
away that jurisdiction. This appeal had been filed by the judgment debtors 
against the judgment of the High Court. 
The appellant contended that the suit having been filed on the basis 
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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 u/s 
3 of the Act, the decree holder did not have any existing right in the 
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property and therefore was not entitled to execute the decree and the High 
Court committed error in not considering this question by applying the 
principle of res judicata; that the notification u/s 3(1) of the Act having 
H been issued in 1963 and the property not having been settled wjth the 
1168 
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SABITRI DEi v. S.C. ROUT 
1169 
intermediary u/s 6 of the Act, the Civil Court had no jurisdiction to pass A 
a decree in 1965 and thus the decree in question was a nullity and that 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. 
The respondents contended that the decree in question could not be 
held to be a nullity as the Civil Court could not be having inherent lack of 
jurisdiction, that Section 6 of the Act overrides the other provisions of the 
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Act and therefore the deemed settlement as contemplated u/s 6 on the 
intermediary does not divest the intermediary of his right to recover C 
possession and therefore the High Court was fully justified in directing 
execution of the decree. 
TI1e questions raised of consideration were (i) whether the decree in 
question could be held to be a nullity and (ii) whether the plaintiff-decree 
holder having lost his right of proprietorship in the property, the Execut-
D 
ing Court could refuse to execute- the decree. 
Allowing the appeal, this Court 
HELD: 1.1. On issuance of a notification under section 3(1) of the 
Orissa Estate Abolition 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 Homes-
teads of Intermediaries and buildings together with lands on which build-
ings stand in the possession of Intermediaries and used as golas, factories 
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or mills to be retained by them on payment of rent. But the pre-conditions F 
in a deemed settlement for fixation of rent as contemplated under Section 6 
must be satisfied namely the land must be in possession of the Intermediary 
and the same must be in use as golas, factories or mills. Under sub-section 
(3) of section SA 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 G 
in the State Government by operation of the Act and ther

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