This is an application under section 4 [c] of the Bihar Consolidation of Holding and Prevention or Fragmentation Act, 1956 [Bihar Act, no. 22 or 1956] (hereinafter referred to as the Act). The prayer made by the appellants who are some of the defendants in the action is to the effect that this appeal as well as the suit in respect of Schedule 1 properties should be held to have abated under toe provisions of Section 4 [c] of the Act.

2. Admitted facts are these. The sole plaintiff, who is respondent no. 1, Instituted Title Suit no. 262 of 1973 on 18.1.1972 in the court of learned Subordinate Judge, Jehanabad. The relief’s sought in the suit were for a declaration of title, recovery of possession and mesne profits in respect of properties set out fully in Schedules 1 and 2 of the plaint. Admittedly the suit was decreed in respect of Schedule 2 properties on the basis of compromise with the consent of the parties concerned. The appellants were not concerned so far as Schedule 2 properties were concerned. The subject matter of this appeal, therefore, does not embrace Schedule 2 properties and so far as this appeal is concerned, we are not in seisin of the matter relating to Schedule 2 properties. The application under section 4 [c] of the Act, therefore, it is obvious, must be considered to relate only to the properties covered by Schedule 1 to tile plaint.

3. As already stated earlier, the suit was instituted on 18.1.72 during the pendency of the suit, admittedly again a notification order section 3 of the Act, was issued on 11.9.75 covering Schedule I properties. The suit has been decreed on 2.9.73, i.e. while the proceedings under the Act, had already commenced in respect of Schedule 1 properties. It is in this background that while passing the application under section 4 [c] of the Act, learned Counsel for the appellants. Mr. Lakshman Saran Sinha makes a prayer that this Court should hold that the suit itself in relation to Schedule 1 properties has abated under the provisions of section 4 (c) of the Act.

4 The relevant portion of section 4 [e] of the Act, reads as follows :

“Every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights or interest in any land lying in the area or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, on an order being passed in that behalf by the court or authority before whom such suit or proceeding stands abated.”

5. This is followed by quite a number of provision with which we are not concerned. It is evident that the suit being one for declaration of title, recovery of possession and mesne profits in respect or Schedule 1 properties the provision of section 4 [c] of the Act, is attracted since admittedly during the pendency of the suit there was commencement of consolidation proceeding by issuance of notice under section 3 of the Act.

6. Learned Counsel for the plaintiff respondent no. 1 very vehemently urged that the suit cannot be held to have abated because there is no suit which can be said to be pending today. The argument of the learned Counsel for respondent no. 1 is that once a suit is decided and the decree passed when the suit is the subject matter of appeal the appellate court cannot hold that the suit has abated in view of section 4 [c] of the Act, because there cannot be said to be a suit, which is pending on the date when the appellate Court may pass an order to that effect.

7. It was further urged by the learned Counsel that the decree which has now become executable cannot be held to have abated. This submission is again based upon a greater fallacy, for if the decree were to be put in execution is cannot be held to be executable in view of the fact that the express language of the statute is that every proceeding in respect of declaration of right