D.P. Mohapatra, J.
1. This Civil Revision is directed against the order dated 7-7-1980 of the Subordinate Judge, Sambaipur in Misc. Case No. 55 of 1979 holding that the decree in Title Suit No. 80 of 1974 is inexecutable.
2. The petitioner filed the aforesaid suit against the opposite party for specific performance of a contract for sale of the suit land. The contract was executed by the opposite party on 31-8-1973. The suit was decreed ex parte on 17-9-1975. It was ordered that the defendant-opposite party will execute the registered sale deed in respect of the suit property in favour of the plaintiff-petitioner within six months failing which the latter is to deposit the stamp duty and necessary charges for registration of the property by Court. The opposite party was further directed to pay Rs. 1138.75 paise to the petitioner towards cost of the suit. The decree was put under execution first in Execution Case No. 38 of 1978 (1977?), which was dismissed on 15-12-1977. Thereafter, Execution Case No. 47 of 1978 which has given rise to the present revision was fifed on 17-11-1978.
In the aforesaid Execution Cast, the opposite party filed his objection on 21-3-1979 stating that the decree in question is void and it cannot be executed. The basis for this objection was that the suit had abated under the provisions of the Orissa Land Reforms Act, 1960 (hereinafter referred to as the Act). The petitioner refuted the objection. The learned Subordinate Judge having upheld the objection raised by the opposite party, this revision has been filed.
3. The Court below has come to hold thatin view of Section 40(2) of the Act the suit was not maintainable and the decree passed in the suit was a nullity and hence not enforceable.
The learned counsel appearing for the petitioner has contended that the Court below has erred in accepting the objection raised by the judgment-debtor-opposite party inasmuch as Section 40(2) of the Act has no application to execution proceedings. According to him, the said section only prohibits institution and trial of suits and has no application to a suit which has been disposed of and decree has been passed.
The question to be considered is whether Section 40(2) of the Act renders a decree a nullity and whether such an objection though not raised during the trial of the suit can be raised at the stage of execution. Before proceeding to examine the question, it would be helpful to quote Section 40 of the Act.
'40. Prohibition of transfer and partition of land and restriction of suits for specific performance of contracts.-- (1) Except where he is permitted in writing by the Revenue Officer to do, no person holding land in excess of the celling area shall, after the commencement of the Orissa Lund Reforms (Amendment) Act, 1973, transfer by sale, gift or otherwise or effect any partition of such land or any part thereof until the surplus land, which is to vest in the Government under Section 45, has been determined and taken possession of by or on behalf of the Government and all transfers made and partitions effected in contravention of this sub-section shall be void; Provided that nothing contained in this sub-section shall apply to : --
(a) any transfer by way of mortgage executed in favour of-
(i) the Central Government or any State Government;
(ii) any public financial institution;
(iii) any bank to which the Orissa Cooperative Societies Act, 1962 applies;
(iv) any corporation established by law which is owned, controlled or managed by the Central Government or by any State Government;
(v) any company in which not less than fifty-one per cent of the paid up share capital is held by the Central Government or by any one or more State Governments or
(b) any sale of land in execution of a decree or order of an award for the realisation of money due under any such mortgage.
(2) Every suit for the specific performance of a contract for the transfer of land, instituted after the 26th day of September, 1970 and before the commencement of the Orissa Land Reforms (Amendment) Act, 1973 shall abate and no suit for the specific performance of any such contract entered into before such commencement shall be maintainable.
(3) All suits for partition of land instituted in a Civil Court after the 26th day of September, 1970 and pending on the date of commencement of the Orissa Land Reforms (Second Amendment) Act, 1975 shall, if the land forming the subject matter of the suit exceeds the ceiling area in respect of the person who is liable to submit a return under Section 40-A in relation to such land, abate.'
4. It is well settled that an executing Court cannot go behind the decree. A well recognised exception to this general principle is when the decree is a nullity. If the decree is a nullity for want of initial jurisdiction of the Court, it ceases to be executable and the Executing Court can legitimately refused to execute such a decree. Therefore, it has to be ascertained if the decree under execution in the present case is a nullity and if answer to this question is in affirmative, the impugned order cannot be assailed.
The scope and import of Section 40 of the Orissa Land Reforms Act has been the subject matter of consideration in several decisions of this Court, In second Appeal No. 161/1977 Madhab Biswal v. Antha, B. K. Ray. J. considered the question whether the provision under Section 40(2) applies only to a case where the party concerned was in possession of land in excess of ceiling area or it applies to all suits for specific performance of contract filed within the period specified in the section. He was of the opinion that Section 40(2) of the Act deals with suits for specific performance of contract for transfer for the land and according to this provision all suits instituted after the 26th day of September. 1970 and before the commencement of Orissa Land Reforms (Amendment) Act, 1973 for specific performance of contract for transfer of land shall abate and no suits for specific performance of any contract for sale of land entered into before the commencement of Orissa Land Reforms (Amendment) Act, 1973 shall be maintainable in any Court. On analysis of different provisions of the Act he came to hold as follows;
'The clear intention of the legislature in making provision under Section 40(2) of the Act is not to allow any suit for specific performance of contract for transfer of land within the period provided under the provision to continue and not to allow any suit for specific performance of any contract for sale of land entered into before the commencement of the Orissa Land Reforms (Amendment) Act, 1973 to be instituted. This being clear intention of the legislature, the contention of Mr. Misra cannot be accepted particularly when there is no inconsistence between the provisions contained in Section 40(1) of the Act and the provisions contained in Section 40(2) of the Act.'
XX XX X 'Such being the position, it appears that the legislature, under Section 40(2) of the Act clearly intended that the suits for specific performance of contract for transfer of land entered into within a certain period should abate and no suit for specific performance of contract for sale of land entered into before commencement of the Orissa Land Reforms (Amendment) Act, 1973 should be permitted to be instituted.'
5. The view taken in the above case was reiterated in the case of Ghasi Paikray v. Dinabandhu Moduli (1980) 50 Cut LT 108 wherein R. N. Mishra, J. (as he then was) negatived the contention that unless the defendants had land in excess of ceiling area, mischief of Section 40(2) did not operate and agreed with the submission that legislative intention is that after the prescribed date no alienation should take place so as to defeat the provision of the Act. Reliance was placed in the decision of B. K. Ray, J. referred to above.
In view of the position of law laid down in the aforesaid decisions, it is to be accepted that Section 40(2) of the Orissa Land Reforms Act applies to the present suit irrespective of position as to whether the defendant was in possession of land in excess of the ceiling area or not. Section 40(2) of the Act can be split up into two parts. While the first part provides that every suit for specific performance of a contract for the transfer of land, instituted after 26-9-1970 and before the commencement of the Orissa land Reforms (Amendment) Act, 1978 (1973?) i.e. 2-10-1973 shall abate, under the latter part of the Section no suit for specific performance of any such contract entered into before such commencement shall be maintainable. In the present case the suit having been filed in 1974 the latter part of the section is applicable. As such, the suit out of which the present execution proceeding arises must be held not to be maintainable under Section 40(2) of the Act.
6. The next question that arises for consideration is whether the decree can be said to be a nullity and hence inexecutable. The express language of the provision under Section 40(2) clearly shows that it goes to the root of the maintainability of the suit. In the circumstances, legislative intention is clear that suits of type mentioned in the section stand destroyed and any decree passed in ignorance of the said provision is rendered a nullity. As such, the conclusion is inescapable that the decree is inexecutable.
7. In view of the aforesaid analysis, the contentions raised on behalf of the petitioner are devoid of merit. Accordingly, the revision petition is dismissed, but in the circumstances of the case without cost of this proceeding.