JAGAN JETHYA LODHI Vs. HARAKCHAND SAMARATMAL

JUDGEMENT

(1.) THIS is an appeal by the appellant-Judgment-debtor against the rejection of his objections regarding ten ability of the execution proceedings by the Courts below.

(2.) 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 under section 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 much 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.

(3.) 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 v. Amar singh (AIR 1974 SC 994.), "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 V. D. Modi v. R. A. Rehman (AIR 1970 SC 1475.)