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1990 DIGILAW 224 (ORI)

NATH ROUT v. RADHESHYAM SWAIN

1990-06-22

K.C.JAGADEB ROY

body1990
JUDGMENT : K.C. Jagadeb Roy, J. - The present opp. Party was the Plaintiff in the Original Suit No. 131 of 1967 in the Court of the Munsif, Puri in which the decree was passed on 9-9-1970 in favour of the Plaintiff against which appeal and letters patent appeal were carried to different forums under the law which were ultimately dismissed and the decree dated 9-9-1970 passed in the suit became final. The Plaintiff thereafter filed the Execution Case No. 34/71 which was renumbered as Execution Case No 63/82 in the Court of the Munsif, Puri for execution of the decree dated 9-9-1970 passed in the Original Suit No. 131/1967. 2. The consolidation operation in the area started in 1976 during the pendency of the execution case. The Petitioner raised an objection to the continuance of the said execution proceeding on the ground that it abated u/s 51 of the Consolidation Act. The petition having been rejected he preferred a civil revision bearing No. 353 of 1983 to this Court which was dismissed on 13-2-1984. The order passed in the Civil Revision No. 353 of 1983 shows that the learned Counsel for the Petitioner conceded and stated tint the execution case did not abate. It was also stated by the learned Counsel Mr. Sutar who was appearing in the said civil revision for the Petitioner that an application was also filed in the executing Court for demarcation of the land before the writ of delivery of possession was issued but that application was rejected for default of f he judgment-debtor and Mr. Sutar prayed that he might be permitted, to move the executing Court again to recall that order as the default was due to reasons beyond the control of his client. The Court expressed the view that he might move the executing Court regarding that if he so desires in which event the executing Court would deal with the application in accordance with law. 3. The present grievance of the Petitioner in this civil revision is that the part of plot Nos. 53 and 79 in Khata Nos. The Court expressed the view that he might move the executing Court regarding that if he so desires in which event the executing Court would deal with the application in accordance with law. 3. The present grievance of the Petitioner in this civil revision is that the part of plot Nos. 53 and 79 in Khata Nos. 56 and 64 respectively in village Fanafana which were the subject matter of the suit and in respect of which the decree was passed in favour of the decree-holder, was in possession of the judgment-debtor on the date of consolidation and the delivery of possession was not taken over by the D. Hr. The said land had been taken away from him now in the consolidation operation and allotted to other villagers as a part of their chak and the judgment-debtor had been allotted a chak in lieu of the said land. That being the position, it is stated by the D. Hr that he had filed an application in the executing Court to amend the original schedule of the property in the execution petition and substitute the newly granted land in the chak allotted to the judgment-debtor in exchange. 4. The Schedule of property for which delivery of possession had been sought for in the decree passed in Original Suit No. 131 of 1967, consists of Ac. 0-21 1/2 decimals from the Southern boundary out of Ac. 0-43 decimals from Plot No. 73 of Khata No. 54 and an area of Ac. 0.37 decimals from the Southern boundary out of Ac. 0.70 decimals in plot No. 59 of Khata No. 56. The executing Court observed that it appeared from the consolidation land records that plot No. 73 measuring Ac. 0.21 1/2 decimals in Khata No. 54 has now been recorded under Plot No. 120 in Chak No. 50 allotted to judgment-debtor and the land under plot No. 59 has been recorded now as plot No. 227 under Chak No. 59 and allowed the petition for amendment by his order dated 8-11-1987 which order has been impugned in this civil revision. 5. In the present civil revision the learned Counsel for the Petitioner urged various points. One of his contention was that because of the consolidation operation in the area, the execution case was not maintainable and should also abate u/s 51 of the Consolidation Act. 5. In the present civil revision the learned Counsel for the Petitioner urged various points. One of his contention was that because of the consolidation operation in the area, the execution case was not maintainable and should also abate u/s 51 of the Consolidation Act. It is also his case that since the land against which decree was passed has already been taken away from him and has been allotted to different persons forming part of their Chak and under the decree such properties in the hands of other cannot be attached, Beside; it is also not possible to ascertain what exact plot in newly carved Chak related to the previous plot numbers under execution. The Petitioner-judgment-debtor only' confined his submissions to these 3 points. Earlier a petition for abatement of the proceeding u/s 4(4) of the Consolidation Act was filed by the judgment-debtor which was rejected by the Executing Court on 26-9-1983. Against the said order, the judgment-debtor filed a civil revision bearing No. 653 of 1983 in this Court which was also dismissed by the order dated 13-2-1984. 6. The word 'Suit' has been used in the ordinary sense of the term, i.e., those proceedings which are initiated by means of a plaint, and is not comprehensive enough to include an execution proceeding. Section 51 of the Consolidation Act bars the jurisdiction of the Civil Court to entertain any suit in future with regard to a matter which would have been disposed of by the authorities under the Consolidation Act, neither this provision nor any other provision in the Act wipe away or supersede a decree already passed lawfully. 7. An execution proceeding is a proceeding which does not originate in itself but follows a decree passed in a suit and consequently is different from a suit. The proceeding up to the stage of the passing of decree is quite different from the procedure followed in execution of the decree. In a case reported in ILR 30 Bom. 101 Trimbakarao Anandrao Mantri v. Balvantrao Narayanrao Mantri it was held that an execution proceeding is not a suit. The proceeding up to the stage of the passing of decree is quite different from the procedure followed in execution of the decree. In a case reported in ILR 30 Bom. 101 Trimbakarao Anandrao Mantri v. Balvantrao Narayanrao Mantri it was held that an execution proceeding is not a suit. The Lucknow Bench of the Allahabad High Court in Smt. Ram Kuar v. Jangi case reported in 1964 A.L.J. 42 at page-718 already followed this view that the word 'suit', has been used in the ordinary sense of the term i.e, those proceedings which are initiated by means of a plaint and is not comprehensive enough to include an execution proceeding. The contention of the petition that the execution proceeding abated u/s 51 of the Consolidation Act obviously has no substance and is accordingly rejected. 8. The next question that whether the continuance of execution proceeding against those lands in the hands of other tenants to whom those lands are given in the consolidation proceeding forming a Chak for themselves requires serious consideration. Evidently, the original plots of land which was the subject matter of the execution proceeding and once belonged to the judgment-debtor were taken away and allotted to different persons forming Chak in their favour under the provisions of the Consolidation Act, Section 31 of the Consolidation Act reads as follows: 31, Consequences to ensue on land-owner entering into possession with effect from the date on which a land-owner enters or is deemed to have entered into possession of the chak allotted to him in accordance with the provisions of this Act, following consequences shall ensue: (1) the right, title, interest and liabilities of every land-owner in respect of his' original holding shall cease: Provided that where the land-owner is allotted his original holding either wholly or in part in the Final Consolidation Scheme his right, title, interest and liability in 'such holding or part thereof, as the case may be, shall remain unaffected (2) every land-owner shall have the same right, title, interest and liabilities in the Chak allotted to him as he had in the original holdings and the rights and interests of all other persons in respect of such original holdings shall stand transferred to the said 'Chak' or to such part thereof as specified in the Final Consolidation Scheme. As per the provisions of the Consolidation Act, the right, title, interest and liability of every land-owner in respect of his original holding ceases with effect from the date on which the land-owner enters or is deemed to have entered into possession of the Chak allotted to him. 9. The language of Sub-section (2) of the said section provides that the interest of all other persons in respect of the original holdings which the land owner had before he entered into the possession of the Chak allotted to him under the Consolidation Act, shall stand transferred to the said chak or to such part thereof.' This provision in essence is the extension of the theory of substitution. The original holdings having been substituted by allotment of a new Chak in favour of the judgment-debtor, the liabilities which the judgment-debtor had incurred in respect of the original holdings stand transmitted to the new holding which was allotted to him by the consolidation authorities. In this view of the law, the decree-holder would be entitled to the whole or such portion of the substituted property which would be equivalent in value with the properties originally under the execution proceeding having been decreed in his favour. The decree-holder, however, would not be entitled to the substituted properties automatically but shall have to approach the Court for a substitution of the equivalent properties from and out of the substituted properties. The impugned order does not show in details what amendment was exactly sought for. It is not clear from the impugned order if the decree-holder wanted to substitute in place of original schedule of property in the execution case, the Chak or a part of the Chak now given to the judgment-debtor in the consolidation proceeding or the decree-holder wanted to proceed with the same land originally under the execution proceeding now in the hands of other persons who have been allotted those lands in the consolidation operation. It appears from the observation made by the executing Court in paragraph-3 of the impugned order that plot No. 73 measuring an area of Ac. It appears from the observation made by the executing Court in paragraph-3 of the impugned order that plot No. 73 measuring an area of Ac. 0.21 1/2 decimals and the land under plot No. 59 which are originally subject matter of the execution proceeding have been recorded under plot No. 120 of Chak No. 50 and under plot No. 227 under Chak No. 89 after the consolidation if these Chaks 50 and 89 are now allotted to other tenants, the prayer for amendment in substituting these plots 120 and 227 in Chak Nos. 50 and 89 for original plots in the schedule of execution namely for plot Nos. 73 and 59 should not have been allowed and the impugned order allowing the same cannot be sustained. However, if these plot Nos. 120 and 227 in Chak Nos. 50 and 89 or any other Land were allotted to the judgment-debtor, then substitution of the equivalent land from the said Chaks for the original land in the schedule of the execution petition is permissible and should have been allowed by the Court below. The Court below has not discussed these matters in detail and nothing is clear from the impugned order as to the real prayer in the amendment petition. The impugned order is, therefore, set aside and the case is remitted back to the Court below with a direction to dispose of the amendment petition in view of the observations made in this order. The Civil Revision is accordingly disposed of.