A decree passed in a suit which is not maintainable under Section 40(2) of the Orissa Land Reforms Act, 1960 is a nullity and hence inexecutable.

D. P. MOHAPATRA, J.

( 1 ) THIS Civil Revision is directed against the order dated 7-7-1980 of the. Subordinate Judge, Sambalpur 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 filed on 17-11-1978. In the aforesaid Execution Case, 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 that in 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 ceiling area shall, after the commencement of the Orissa Land 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