Where a decree for partition has been passed and subsequent to the decree, consolidation operation has commenced and rights of the parties have been worked out in the consolidation proceedings, the decree becomes inexecutable.

JUDGMENT :

G.B. Pattnaik, J. - The decree-holder in Title Suit No. 18 of 1967 is the petitioner. The suit was one for partition and preliminary decree was passed on 27-3-1970. Final decree proceeding was initiated and it was sealed and signed on 15-4-1986. The petitioner filed Execution Case No. 9 of 1986 for taking delivery of possession of the property allotted to his share under the decree in question. Opp. party No. 2 filed an objection challenging the maintainability of the execution case on the ground that subsequent to the decree, consolidation operation having commenced in the area, rights and interests of the Parties have been worked out in the said consolidation proceedings ; the consolidation authorities have allotted different chakas to different shareholders and parties have executed sale deeds pursuant to the allotment and, therefore, that right cannot be now interfered with in the execution proceeding. The learned Munsif having allowed the objection fifed by opp. party No. 2 and having held that the decree has become in executable because of the adjudication of rights of the parties in the consolidation proceedings, the petitioner has preferred this revision.

2. Mr. Misra, the teamed counsel appearing for the petrtioner. Contends that the rights of the parties having been decided by virtue of the preliminary decree, the executing Court has gone behind the decree by holding that the decree has become inexecutabte. He further contends that the orders passed by the consolidation authorities would I have no effect in respect of the decrees which have become final and, therefore, the executing Court must execute the same.

Mr. Nayak appearing for opp. parties 1 and 2, on the other hand, contends that subsequent to the decree, the consolidation operation" having started and rights of the parties having been worked out in the said consolidation proceedings, the original decree cannot now be executed and, therefore, the executing Court has tightly refused to execute the decree.

3. In view of the rival submissions made at the Bar, the questions that arise for consideration are whether the decree in a suit for partition can still be executed upon if in the meantime rights of the parties have been worked out in a consolidation proceeding and parties have been allotted with new chakas and the parties. have exercised their right in respect of the newly allotted chakas by executing sale deeds in favour of several persons ? and secondly, whether in the consolidation proceeding subsequent to the decree passed in the partition suit rights of the patties have actually been worked out by allotment of different chakas ? I will consider the second Question first. But before that it will be appropriate to notice certain admitted facts. The plaintiff petitioner had filed a suit for partition which was registered as Title Suit No. 18 of 1967. The preliminary decree for partition was passed on 21-3-1970 and a final decree was passed on 15-4-1986. Subsequent to the passing of preliminary decree, the villages where the lands situate came under consolidation operation by issuance of the notification u/s 3 (1} of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972. In the said consolidation operation, tiral publication has been made on 31-3-1983; chakas have been allotted after preparation) of the R. 0. R. by the consolidation authorities in favour oi the parties ; allotment has been made not in terms of old plot numbers but in terms of new plot numbers and by way of consolidation several old plots which were the subject-matter of the suit for partition have been allotted to several other raiyats of the village. Further both the deeree-holder and the judgment-debtors have sold different portions of chaka plot numbers allotted to them in the consolidation operation to different persons. On these admitted facts, I will now examine the second question first.

4. Undisputedly a preliminary decree had been p3ssed in a