JUDGMENT Tarun Agarwala, J.
1. The plaintiff instituted a suit for a permanent injunction restraining the defendants from interfering in the possession of the plaintiff over the land in dispute. The plaintiff contended, that he was the owner and in possession of the ancestral house and the land appurtenant to it prior to the date of vesting and therefore the buildings, etc. was liable to be settled in his favour under Section 9 of the U.P.Z.A. & L.R. Act and that, the defendants had no right or title on the said land. The defendants, on the other hand, denied the ownership or the possession of the plaintiff over the land in question and further submitted that the Land Management Committee had issued a resolution dated 29.5.1977 allotting the land in their favour. It was urged that the allotment order issued by the Land Management Committee was valid and that they were entitled for the possession of the land.
2. During the pendency of the suit, it transpires that the defendants took forceful possession of the land in question and raised certain constructions. Accordingly, an amendment application was filed which was allowed and a prayer in the plaint was incorporated, namely, for the removal/demolition of the construction so raised by the defendants over the property in question and for its possession.
3. The trial court, by an order dated 12.12.1988 dismissed the suit holding that the land did not vest with the plaintiff under Section 9 of the U.P.Z.A.& L.R.Act. The lower appellate court allowed the appeal by an order dated 4.4.1989 and decreed the suit holding that the plaintiff was in possession of the land in question for the last 40 years, i.e., prior to the date of vesting and therefore, the land was liable to be settled in his favour. The lower appellate court further found that the allotment order issued by the Land Management Committee was not effective because the formalities were not completed before the resolution was taken out, as contemplated under Section 122-C of the Act, and that no evidence was filed to show that the defendants were put in possession by the Land Management Committee. The lower appellate court, further found that previous approval was not taken by the Land Management Committee from the Assistant Collector while issuing a resolution for the allotment of the land in favour of the defendants.
4. The defendants filed a second appeal before this Court which was dismissed by a judgment dated 19.2.2000. The High Court held that the allotment order did not confer any right or title in favour of the defendants, inasmuch as, the said allotment order was in violation of the provisions of Section 122-C and therefore, did not authorise the possession of the defendants on the land in question. The High Court further affirmed the finding that the plaintiff was in possession for the last 40 years and that the defendants came in possession and had raised a structure during the pendency of the suit. It has also come on record that a review application was filed which was rejected by an order dated 31.1.2003.
5. Pursuant to the aforesaid decree, the execution proceedings were initiated. The judgment debtor filed an objection under Section 47 of the C.P.C, on the ground that the land was not identifiable and that the land was left out for the purpose of a harijan abadi during the consolidation proceedings and therefore, the land had vested with the Gaon Sabha. It was also urged that the allotment order had not been cancelled by any authority and therefore, the judgment debtors could not be dispossessed. The Executing Court rejected the objections of the judgment debtors by an order dated 26.2.2005. The revision of the judgment debtors was also dismissed by an order dated 4.10.2006. Consequently, the writ petition.
6. Heard Sri Triveni Shanker, the learned senior counsel, assisted by Sri A.K. Patel, for the petitioners-judgment debtors and Sri A.K. Sharma, the learned Counsel for the respondent-decree holder.
7. The learned Counsel for the petitioners submitted that the land in question was not identifiable and therefore, the decree became in executable. Further, the allotment order issued by the Land Management Committee had not yet been cancelled by any authority in any proceedings and therefore, a valid allotment order still existed as on date and therefore, on that basis, the judgment debtors could not be dispossessed. The learned Counsel further submitted that during the pendency of the execution proceedings, the judgment debtors had perfected their right over the land in question and therefore, in accordance with the provisions of Section 123(2) of the Act, as amended by U.P. Act No. 11 of 2002, the land was required to be settled in their favour. Consequently, the decree became inexecutable at this stage. In support of his submission, the learned Counsel for the petitioners has placed reliance upon the following judgements:
1. Smt. Radhi Devi and Ors. v. Lalit Bihari Mohanty .
2. Dhurandhar Prasad Singh v. Jai Prakash University and Ors. 2001(5)Supreme Today 278.
3. Panchu v. Collector, Gorakhpur and Anr. 2006 (101) RD 562.
4. Manorey @ Manohar v. Board of Revenue (U.P.) and Ors. 2003 (II) RJ 1239.
8. The learned Counsel urged that even though the petitioner had not taken the ground of Section 123(2) of the Act in its objections under Section 47 of the Act, nonetheless, since a point of law was being raised and which goes to the root of the matter, consequently, it could be urged, for the first time, in a writ jurisdiction. In support of his submission, the learned Counsel placed reliance upon a decision of the Supreme Court in Chandrika Misir and Anr. v. Bhaiyalal , wherein the Supreme Court held that where the Court inherently lacked jurisdiction, the plea that the decree was a nullity, could be raised at any stage of the proceedings.
9. Sri Sharma, the learned Counsel for the decree holder submitted that a valid decree was passed by the court below and that the decree was not a nullity. Further, the objections raised under Section 123 of the Act could not be raised in a writ jurisdiction for the first time. Even otherwise, the provisions of Section 123 of the Act was not attracted, inasmuch as, the said provision, as inserted by U.P. Act No. 34 of 1974, was prospective in nature and that, the said provision could not override the provision of Section 9 of the U.P.Z.A. & L.R. Act. The learned Counsel submitted that the land was liable to be settled in his favour under Section 9 of the Act which could not be set at naught by the provisions of Section 123(2) of the Act.
10. The submission of the learned Counsel for the petitioner that the land could not be identified and therefore, the decree became inexecutable is misconceived and bereft of merit. The question whether the land could be identified or not could only be found out after a survey is made on the spot in question. The findings given by the executing court, on this aspect of the matter, does not suffer from any error of law.
11. It was urged that the allotment order under Section 122-C of the Act was not cancelled by any authority in any proceedings and therefore, a valid allotment order still existed in their favour and, on that basis, the judgment debtors could not be dispossessed from the land in question. The submission of the learned Counsel for the judgment debtors is misconceived and bereft of merit. The High Court held that the allotment order was issued in violation of the provisions of Section 122-C of the Act and that the said order of the Land Management Committee did not confer any right or title to the judgment debtors nor did it authorise the possession of the land in question. In view of the aforesaid findings given by the High Court, the order of the allotment is not a valid order and, in fact, is a nonest, void order which had no sanctity in the eyes of law. Consequently, no help can be drawn by the judgment debtors from an invalid allotment order.
12. In the opinion of the Court, the third submission raised by the learned Counsel for the petitioners is also misconceived and could not be urged in a writ jurisdiction for the first time, in the absence of not raising it before the executing court. A point of jurisdiction indicating that the decree is a nullity could be raised for the first time in a writ jurisdiction. The question whether the judgment debtors had perfected their right during the execution proceedings and, on that basis, the decree became inexecutable would not, in my opinion, make the decree a nullity nor would it give a liberty to the judgment debtors to raise this ground for the first time in a writ jurisdiction. Consideration on this aspect of it is based on certain factual foundation and therefore, such a ground could only be raised, at the initial stage, before the execution court. This Court therefore holds that since the decree was not a nullity and that there was no inherent lack of jurisdiction, consequently, such a plea could not be raised for the first time in a writ jurisdiction.
13. The learned Counsel for the petitioners placed reliance upon a decision of the Orissa High Court in the case of Smt. Radhi Dei and Ors. v. Lalit Bihari Mhanty , wherein it was held-
The position of law is well settled that ordinarily the executing Court is not entitled to go behind the decree and is not entitled to consider subsequent events to deny the decree-holder the right to execute the decree. But there were certain well recognised exceptions to this rule; one of them is that when the decree is a nullity or the decree-holder has lost the right to execute the decree on account of a subsequent change in law or some subsequent development then the executing Court can take note of change in the situation and can refuse to execute the decree on that basis.
14. The learned Counsel submitted that in view of the subsequent change in the law, the point urged should be decided. In my opinion, a subsequent change in law would make no difference. The judgment debtor is still required to urge this ground at the initial stage itself and could not be permitted to raise this ground for the first in a writ jurisdiction. However, having raised this point and insisting that this point be decided, the Court is deciding this issue on merits.
15. The executing court can very well look into the executability of the decree. Whenever such a decree comes before the executing court, its duty is to see, as to whether on the date of the pronouncement of the decree, the Court which had passed the decree, had the jurisdiction to pass the decree or not. If the Court had no jurisdiction to pass the decree it would render such a decree a nullity by reason of it being passed without jurisdiction.
16. In the present case, the learned Counsel submitted that during the pendency of the execution proceedings, the judgment debtors had matured its right and therefore, the land was required to be settled in their favour and therefore the decree had become inexecutable by virtue of the amendment made in Section 123(2) of the Act by U.P. Act No. 11 of 2002. In order to appreciate the aforesaid submission, it is necessary to consider the provisions of Section 123 of the U.P.Z.A.& L.R. Act. By U.P. Act No. 21 of 1971, Section 123 of the Act was re-enacted and thereafter by U.P.Act No. 34 of 1974, Sub-section(2) of Section 123 of the Act was inserted while describing Section 123 of the Act as Sub-section (1). This provision was subsequently amended by U.P. Act No. 24 of 1986 and again by U.P.Act No. 19 of 1997 and now by U.P. Act No. 11 of 2002. Section 123 as amended by U.P.Act No. l 1 of 2002 is quoted herein under:
123. Certain house sites to be settled with existing owner thereof.- [(1) Without prejudice to the provisions of Section 9, where any person referred to in Sub-section (3) of Section 122-C has built a house on any land referred to in Sub-section(2) of this section, not being land reserved for any public purpose, and such house exists on the [May 1,2002], the site of such house shall be held by the owner of the house on terras and conditions as may be prescribed.] [(2) Where any person referred to in Sub-section (3) of Section 122-C has built a house on any land held by a tenure holder (not being a Government lessee) and such house exists on the [June 3, 1995], the site of such house shall, notwithstanding anything contained in this Act, be deemed to be settled with the owner of such house by the tenure holder on such terms and conditions as may be prescribed.
17. The aforesaid provision indicates that the person, referred in Sub-section (3) of Section 122-C, has built a house on any land held by a tenure holder and that such a house exists on 3.6.1995, then notwithstanding anything contained in the Act, the land would be deemed to be settled with the owner of such house by the tenure holder. The learned Counsel submitted that admittedly, the petitioners-judgment debtors had constructed a house on the land in question during the pendency of the suit and that, such a house existed on or before 3.6.1995, and therefore, in view of the change in the provision of the law, as brought about by U.P. Act No. 11 of 2002, the judgment debtors had matured their rights and therefore, the decree could not be executed.
18. In Rameshwar Gond (dead) v. IInd Additional District Judge, Deoria 1998 (89) RD 742, this Court examined the provisions of Section 123 of the Act as incorporated by U.P.Act No. 34 of 1974 and held that the said provision was prospective in nature and that there was nothing to indicate that the said provision was required to be given a retrospective effect.
19. I am in respective agreement with the said judgment and I have no hesitation in holding that the provisions of Section 123(2) of the U.P.Z.A.& L.R.Act, as inserted by U.P.Act No. 34 of 1974, and as amended from time to time, is prospective in nature and cannot be given a retrospective effect. Further, I find that the provisions of Section 123 of the Act does not provide, either expressly or by necessary implication, to indicate, that from the appointed date, the valid decrees or orders of the Court would become void or would be rendered a nullity. The Act No. 24 of 1974 nowhere states that a decree of the Court would become invalid or nullity either by express provision or by implication. The provisions of Section 123(2) of the Act does not give any overriding effect to any valid decree passed by a Court of law. In fact, the expression "notwithstanding anything contained in the Act" as given in Section 123(2) is confined to the provisions of U.P.Z.A.& L.R.Act. The said expression cannot be stretched to anything beyond the Act. It cannot be stretched to any decree passed by a Court of Law. The U.P.Z.A.& L.R.Act does not contain any provision which would indicate that a valid decree passed by a Court would become a nullity or void by a reason of enactment of Section 123(2) of the Act from the appointed date.
20. The rights of a party is governed by the decree. Such a decree can only be set aside by a judicial process and cannot be rendered invalid or void by a deeming provision unless there is a specific provision in the statute. In the absence of any express provision, the decree cannot become a nullity on the basis of a provision of law.
21. In view of the aforesaid, this Court is of the opinion that Section 123(2) of the Act has no application and that a decree of the Court could not be declared to be a nullity or in executable on the basis of the provisions of Section 123(2) of the Act as amended by U.P. Act No. 11 of 2002. Consequently, the judgments cited by the learned Counsel for the petitioners are distinguishable and not applicable to the facts and the circumstances of the case.
22. In view of the aforesaid, the petitioners are not entitled for any relief. The writ petition is dismissed. In the circumstances of the case the parties shall bear their own cost.