Deoki Nandan, J. - (1.) THIS is a judgment debtor objector's execution second appeal.
(2.) THE decree under execution was for possession over plots of land Nos. 267 and 268 of Khata No. 82 of village Bhweeki Surju Patti Kapholsyun in the district of Pauri Garhwal. The suit Was decreed by the trial court on 5th February, 1965. An appeal therefrom was dismissed by the District Court on 27th May, 1967, The execution application was made on 26th October, 1971. The judgment -debtor objected on the ground that the decree had become inexecutable by reason of the enforcement of the Kumaun and Uttarakhand Zamindari Abolition and Land Reforms Act, 1960, with effect from 1st July, 1965. It was explained that the decree -holder Respondent was a Hissedar of the land and the judgment -debtor -objector was recorded as an occupant. He became an Assami under Section 10(e) of the said Act and a Sirdar with effect from 1st January, 1968 under Notification No. 292/9 Ka -2 -4(6) 67 dated 20/10/1967, issued under Section 35 of the Act. The rights of the decree -holder as a Hissedar became extinguished. It was urged by Mr. G.C. Ghildiyal, Learned Counsel for the decree -holder Respondent that the appeal before the district court was still pending when the Act came into force and the point not having been raised in the appeal and the appeal having been decided against the judgment -debtor, the objection is barred by the rule of constructive res -judicata enshrined in Explanation IV of Section 11 of the Code of Civil Procedure.
(3.) MR . K.C. Dhuliya appearing for the Appellant urged on the other hand that under the said Act the judgment -debtor was entitled to retain possession and even if he is ejected in execution of the decree he could have regained possession under Section 233(1) of the J.P. Zamindari Abolition and Land Reforms Act read with Section 57 of the Kumaun Act, but his strongest point was the decision of the Supreme Court in Haji Sk. Subhan v. Madhorao : AIR 1962 SC 1230. In that case appropriator bad Sled the suit for possession over a plot of agricultural land. The suit was decreed and the decree was upheld by the Madhya Pradesh High Court by its order dated 20th . April, 1951. In the meanwhile, after the close of the arguments in the appeal before the High Court and before the delivery of its judgment, the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 came into force. This fact was not brought to the notice of the High Court. When the decree -holder applied for execution of the decree by delivery of possession on 23rd July, 1951, the judgment -debtor paid up the costs but objected to the application for delivery of possession on the ground that the decree -holder's right to dispossess the judgment -debtor was lost with his proprietary rights to the land on the enforcement of the said Act. The Supreme Court held that the provisions of that Act were sufficient to divest the decree -holder of his proprietary rights, and he could not acquire any right in his favour subsequent to the vesting of the estates and could not, therefore, acquire the right to possess the land under the decree of the High Court which was passed after the date of vesting.;