JUDGMENT

SHINGHAL, J.:—Maguni Charan Dwivedi, the appellant, filed a title suit in the Court of Munsif, Sundargarh against the State of Orissa, for declaration of his title and recovery of possession of plot No. 99 measuring 3.80 acres in khata No. 89 of village Mahulpali claiming it as his "ganju bhogra" land. The suit was decreed on October 14, 1958, in respect of 3.45 acres. The defendant State of Orissa, did not file an appeal and the decree became final. Decree-holder Dwivedi applied for its execution. The case was transferred to the court of the Subordinate Judge of Sundargarh. An objection was taken there by the Notified Area Council, Rourkela, respondent No.2, hereinafter referred to as the Council, under Section 37 and 38 and Order XXI Rule 58 of the Code of Civil Procedure on the ground that it was in actual physical possession of the land. The objection application was however rejected by the execution court on March 31, 1965. The Council applied for revision of the order of rejection, but its application was dismissed with the observation that the Council might file a regular suit for adjudication of its right if it so desired. No suit was filed by the Council and decree-holder Dwivedi filed an application on September 5, 1966 for proceeding with the execution of his decree. The Council and the State then made an application under Section 47 of the Code of Civil Procedure stating that the decree was not executable because the Orissa Merged Territories (Village Offices Abolition) Act, 1963, hereinafter referred to as the Act, had come into force in the area on April 1, 1966, and the "bhogra land" in question had vested in the State free from all encumbrances. The Subordinate Judge upheld that objection and dismissed the execution application.

2. Decree-holder Dwivedi felt aggrieved, and filed an appeal which 1122 was heard by Additional District Judge, Sundargarh, who held by his order dated May 2, 1970 that the decree was executable. He therefore set aside the order of the execution court and the State of Orissa and the Council went up in appeal to the High Court. The High Court held that as the decree-holder was not in actual physical possession of the land the tenure had vested in the State free from all encumbrances under Section 3 of the Act, the decree was "rendered not est", and the Collector could not settle the land with him under Section 5 of the Act. It, therefore, allowed the appeal by its impugned judgment dated November 4, 1974, and ordered that the decree-holder could not executed the decree. He applied for and obtained special leave, and has filed the present appeal.

3. It is not in dispute before us that the appellant held the "Village Office" within the meaning of Section 2 (j) of the Act. It is also not in dispute that it was in that capacity that he held the "bhogra land" in question by way of emoluments of his office. Moreover it is not in dispute that the appellant s village office stood abolished in accordance with the provisions of Section 3 (a) of the Act. The consequences of the abolition have been stated in cls. (a) to (g) of Section 3. It will be sufficient for us to say, for purposes of the present controversy, that as a result of the abolition of the office, all incidents of the appellant s service tenure, e.g., the right to hold the "bhogra land" stood extinguished by virtue of the provisions of cl. (b) of Section 3, and all settlements, sanads and all grants in pursuance of which the tenure was being held by the appellant stood cancelled under Section 3 (c). The right of the appellant to receive the emoluments was also deemed to have been terminated under cl. (d), and by virtue of cl. (f) his "bhogra land stood resumed and "vested abosolutely in the State Government free from all encumbrances." Section 3 of the Act in fact expressly provided that this would be the result, notwithstanding anything in any law, usage, settlement, grant, sanad or order or "in any judgment, decree or order