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PATNA HIGH COURT
B.N.Agrawal and Nagendra Rai JJ.
Hari Narain Singh
Versus
Jabit Singh
Civil Revision No. 1812 of 1986 ;
Decided On : APRIL 23, 1992
CONSOLIDATION OF HOLDINGS AND PREVENTION OF FRAGMENTATION ACT, 1956 - ABATEMENT OF SUIT AND APPEAL - JURISDICTION OF APPELLATE COURT - INCOMPETENT APPEAL - ABATEMENT UNDER CODE OF CIVIL PROCEDURE - NO JURISDICTION TO PASS ORDER UNDER SECTION 4(C) OF THE ACT.
Fact of the Case:
During the pendency of an appeal, respondents 8 and 9 died, and their heirs were not brought on record. The appellate court held that the appeal abated due to non-substitution and also that the suit and appeal abated under Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (Consolidation Act). The plaintiffs challenged this order in a civil revision application.
Finding of the Court:
The court held that the appellate court had no jurisdiction to pass an order under Section 4(c) of the Consolidation Act after the appeal had abated under the Code of Civil Procedure (CPC) for non-substitution of the heirs of the deceased respondents. The court reasoned that a competent appeal is a condition precedent for passing an order under Section 4(c) of the Consolidation Act, and since the appeal had abated under the CPC, no competent appeal was pending before the court.
Issues: 1. Whether the appellate court had jurisdiction to pass an order under Section 4(c) of the Consolidation Act after the appeal had abated under the CPC for non-substitution of the heirs of the deceased respondents? 2. Whether the suit and appeal abated under Section 4(c) of the Consolidation Act?
Ratio Decidendi: 1. The court relied on the provisions of Section 4(c) of the Consolidation Act, which states that every suit and proceeding pending before any court or authority shall stand abated upon an order being passed in that behalf by the court or authority. However, the court held that this provision is subject to the condition that a competent appeal is pending before the court. 2. The court also relied on the Supreme Court decision in Mst. Bibi Rahmani Khatoon v. Harkoo Cope, which held that the abatement of an appeal under the CPC does not affect the finality of the judgment, decree, or order against which the appeal is preferred. Therefore, the court held that the appellate court had no jurisdiction to pass an order under Section 4(c) of the Consolidation Act after the appeal had abated under the CPC.
Final Decision: The court allowed both civil revision applications, set aside the orders of the appellate court and the executing court, and directed the executing court to proceed with the execution case.
NAGENDRA RAI, J.
1. Both these civil revision applications arise out of the same matter and the question of law involved in both the applications is the same and as such they are being disposed of by this common judgment.
2. Civil Revision No. 1812 /86 is directed against the order dated 23-4-1985, passed by the Second Additional District Judge in Title Appeal No. 40 of 1977; whereby, he has held that the Title Appeal and the Title Suit, out of which the appeal arose have abated under S. 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Consolidation Act).
3. Civil Revision No. 1906 / 86 is directed against the order dated 2-8-1986, passed by the Execution Munsif, Arrah, in Execution Case No. 60 / 77 dismissing the execution case on the ground that the decree in pursuance of which the execution case was levied, has become non est in the eye of law after the abatement of the suit and appeal under the provisions of the Consolidation Act.
4. The question involved in both the civil revision applications is as to whether the appellate court has jurisdiction to entertain and decide the question of abatement of the appeal and the suit out of which appeal arises under S. 4(c) of the Consolidation Act after the appeal has abated under O. XXII, R. 4 read with R. 11 of the Code of Civil Procedure for non-substitution of the heirs and legal representation of some of the deceased/ respondents in the appeal.
5. Civil Revision No. 1812 / 86 was placed before one of us (B. N. Agrawal, J.) for hearing and considering the importance of the question of law involved in the case, referred the same to a Division Bench for an authoritative pronouncement. Civil Revision No. 1906/86 was placed for hearing before the learned single Judge of this Court, who, by order dated 14-2-1989, directed that the same should be heard along with Civil Revision No. 1812 / 86 and that is how both the civil revision applications have been placed before us for hearing.
6. The plaintiffs, who are petitioners and opposite party third set in the present revision applications, filed the suit for declaration of their right, title and interest over the suit land and for recovery of possession after evicting the defendants-opposite parties 1st and 2nd sets and also nor an injunction restraining them from interfering with their possession.
7. The trial court decreed the suit on contest against defendant No. 4 and ex parte against other defendants by a judgment and decree dated 21-1-1977. Defendants-opposite parties preferred Title Appeal No. 40/77 against the aforesaid judgment and decree before the District Judge, which was, ultimately transferred to the court of Second Additional District Judge. During the pendency of the appeal the defendants-opposite parties on 15-6-1978 filed an application stating that a notification under S. 3 of the Consolidation Act has been issued with regard to the village in question where the suit land is situated and, accordingly, the appeal as well as title suit, out of which the appeal arose, abated under S. 4(c) of the Consolidation Act. It further appears from the record that respondents Nos. 8 and 9 died during the pendency of the appeal and their heirs and legal representatives were not brought on the record.
8. The learned Additional District Judge, by order dated 28-6-1978 allowed the application and held that the appeal and the title suit both have abated under S. 4(c) of the Consolidation Act. One of the plaintiffs, namely, Sahdeo Singh, filed Civil Revision No. 1841/78 before this Court and the said revision application was allowed on 19-5-1982 on the ground that no opportunity of hearing was given to all the interested parties and the case was remitted back to the lower appellate court for a fresh decision on the question of abatement of the suit and appeal under S. 4. (c) of the Consolidation Act after giving an opportunity of hearing to the parties. While rem
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