Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 does not apply to execution proceedings or to the preparation of the final decree subsequent to preliminary decree in a suit for partition of immovable property.

S.S. Sandhawalia, C.J.

Whether in a suit for partition the proceedings subsequent to the preliminary decree (which has achieved finality) in pursuance thereof for the preparation of the final decree would be hit and consequently abate under section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter called 'the Act'), is the significant question before this Full Bench on a reference.

2. The facts are not in dispute and lie in a narrow compass. In Title Suit No. 245 of 1964 pending in the court of Sub-Judge, Purnea JUDGMENT : was rendered on the 21st of August, 1970 and a preliminary decree based thereon was duly prepared on the 2nd of September, 1970. It is the admitted position that at that time consolidation proceedings with regard to the suit properties had not at all been initiated. However the proceedings for the preparation of the final decree apparently continued and dragged on. Meanwhile a notification under section 3 of the Act was later duly notified by the State Government. The defendants then filed a petition claiming that the final decree proceedings in the suit would also stand abated under section 4(c) of the Act aforesaid. A rejoinder petition was filed on behalf of the plaintiff on the 22nd of September, 1979 pointing out that the preliminary decree had already been passed and taking the stand that the proceedings for preparation of a final decree in the suit are not hit by section 4 (c) of the Act aforesaid. Firm reliance was placed on the decision in the case of Sheikh Md. Safi v. Abdul Razak (Civil Revision No. 1754 of 1978 decided on 26th July, 1979).

3. The learned Sub-Judge basing himself primarily on the JUDGMENT : aforesaid held that the final decree proceedings in the suit do not come within the mischief of section 4(c) of the Act and rejected the application of the defendants. Being aggrieved thereby the present civil revision has been preferred.

4. This case originally was placed for hearing before a Division Bench. Before it reliance was also placed on behalf of the opposite party on a decision in the case of Nathuni Rai v. Smt. Khira Devi (1981 B.B.C.J. 413). However, the correctness of that view was sought to be assailed on the basis of the decision in Satya Narain Sah v. State of Bihar [A.I.R. 1980 S.C. 2051 : 1981 PLJR 220 (SC)] and Mosst. Bibi Rahmani Khatoon v Harkhoo Gope [A.I.R. 1981 S.C. 1450 : 1982 PLJR 59 (SC)]. Expressing some doubt about the correctness of earlier view and noticing the significance of the issue the civil revision was referred to the Full Bench and that is how it is before us now.

5. The controversy herein inevitably revolves round section 4(c) of the Act which may, therefore, be read at the very outset for facility of reference.

"4. Effect of notification under section 3(1) of the Act. - Upon the publication of the notification under sub-section (1) of section 2 in the official gazette the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified in the notification till the close of the consolidation operation, ensue in the area to which the notification relates, namely :-

x x x x x x

(c) every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights of interest in any land lying in the area or for declaration of 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, shall, on an ORDER :being passed in that behalf by the court or authority before whom such suit or proceeding is pending stand abated" .....

Pinning himself with some literality on the letter of the law in the provision aforesaid, Mr. T.K. Jha, the learned counsel for the petitioners raised a twin contention. It was argued that in a partition suit the preliminary decree is in no way a final dete