BIRANCHI SAHU Vs. JUJESTHI SAHU AND ORS.

JUDGEMENT

(1.) THE decree -holder in Title Suit No. 18 of 1967 is the petitioner. The suit was one for partition and preliminary decree was passed on 27 -3 -1970. Final decree proceeding was initiated and it was sealed and signed on 15 -4 -1986. The petitioner filed Execution Case No. 9 of 1986 for taking delivery of possession of the property allotted to his share under the decree in question. Opp. party No. 2 filed an objection challenging the maintainability of the execution case on the ground that subsequent to the decree, consolidation operation having commenced in the area, rights and interests of the Parties have been worked out in the said consolidation proceedings ; the consolidation authorities have allotted different chakas to different shareholders and parties have executed sale deeds pursuant to the allotment and, therefore, that right cannot be now interfered with in the execution proceeding. The learned Munsif having allowed the objection filed by opp. party No. 2 and having held that the decree has become in executable because of the adjudication of rights of the parties in the consolidation proceedings, the petitioner has preferred this revision.

(2.) MR . Misra, the teamed counsel appearing for the petitioner . Contends that the rights of the parties having been decided by virtue of the preliminary decree, the executing Court has gone behind the decree by holding that the decree has become inexecutable. He further contends that the orders passed by the consolidation authorities would I have no effect in respect of the decrees which have become final and, therefore,, the executing Court must execute the same.

(3.) UNDISPUTEDLY a preliminary decree had been passed in a suit for partition much prior to the initiation of the consolidation proceedings and under the said decree the rights and interests of the parties in relation to the lands had been determined. The notification Under Section 3(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act was issued subsequent to the said preliminary decree. A preliminary decree obviously cannot be re -opened by the authorities under the Consolidation Act and the Legislature never intended to deprive a party of the fruits of a decree which has already become final. Where, therefore, consolidation operation starts subsequent to the preliminary decree, then the consolidation authorities are bound to accept the rights and interests of the parties as carved out under the preliminary decree. In the case of Srinibas Jena (and after him) Madhabananda Jena and Ors. /. Janardan Jena and Ors. a Full Bench of this Court came to hold that a final decree proceeding would not abate Under Section 4 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act. In the said case, it was held by this Court that while the scheme of the Consolidation Act is to consolidate the fragmented holdings, the object of a final decree proceeding is to divide the lands into fragments and thus an anomalous position arises which requires legislative intervention. Notwithstanding said observation, there has been no legislative Act for the purpose. But from the fact alleged and documents produced, it transpires that notwithstanding the preliminary decree in the suit for partition, the consolidation authorities proceeded and decided the rights of the parties, both the decree -holder and the judgment -debtors, by allotting different chakas in their favour, the said consolidation proceedings have been finalised and in the process of such allotment the lands which were the subject -matter of the partition suit have been allotted of different other raiyats. That apart, even the decree -holder himself has executed sales in favour of different persons from out of the chaka lands allotted to him in the consolidation proceeding. In the aforesaid premises, I have no hesitation to come to the conclusion that the rights of the parties have been fully effectuated in the consolidation proceedings which have become final and new chaka plots have been allotted to the petitioner as well as opp. party No. 2 and pursuant to such allotment, parties have further effected sates in respect of parts of their chaka lands to different persons.