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IN THE HIGH COURT OF JUDICATURE AT PATNA
SUNIL DUTTA MISHRA, J.
Ram Kripal Singh, S/o Late Ram Briksh Singh – Appellant
Versus
The State of Bihar – Respondent
Civil Miscellaneous Jurisdiction No.57 of 2022
Decided on : 26-06-2023
Abatement - Bihar Consolidation Act - Section 3, Section 4, Section 4A, Section 26A - The court discussed the abatement of proceedings, the effect of notifications under Section 3 and Section 4A, and the close of consolidation operations under Section 26A of the Bihar Consolidation Act. Key legal provisions such as Section 4(c) and its implications were highlighted, and the court's decision was influenced by the interpretations of these provisions.
Fact of the Case:
The Civil Miscellaneous Application was filed to restore and revive Execution Case No. 15 of 1967, which had been abated during the pendency of consolidation proceedings under the Bihar Consolidation Act. The petitioner sought revival based on the denotification of the consolidation scheme.
Finding of the Court:
The court found that the abated Execution Case No. 15 of 1967 would automatically revive in view of the denotification under Section 4A of the Bihar Consolidation Act.
Issues: The main issue was the revival of the abated execution case in light of the denotification of the consolidation scheme.
Ratio Decidendi: The court relied on the statutory provisions of the Bihar Consolidation Act, particularly Sections 3, 4, 4A, and 26A, and the interpretations provided by previous judgments to decide that the execution case would automatically revive after denotification.
Final Decision: The Civil Miscellaneous Application was allowed, and Execution Case No. 15 of 1967 was automatically revived. The parties were directed to appear before the Execution Court for further proceedings.
JUDGMENT :
Heard learned counsel for the parties.
2. This Civil Miscellaneous Application has been filed under Article 227 of the Constitution of India for restoring and reviving Execution Case No. 15 of 1967 (arising out of preliminary decree dated 25.04.1996 in Partition Suit No. 36 of 1962/78 of 1996) to its original file.
3. The brief facts of the case as per the application are that the original plaintiffs instituted Partition Suit No. 36 of 1962 on 15.06.1962 in the Court of Sub-Judge 1st, Muzaffarpur against defendants for partition of the joint family property which was decreed in part and it was ordered that partition by metes and bounds shall be effected by Survey Knowing Pleader Commissioner appointed by the Court at the instance of any party. Against the said decree, First appeal being F.A. No. 227 of 1966 was filed by Bidya Singh and others on 15.07.1966 before this Court. At the stage of hearing of the said appeal an application under Section 4 (c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (in short ‘Bihar Consolidation Act’) was filed on 23.02.1984 by the appellants on the ground that there is notification No. S.O. 1039 dated 06.09.1975 published in the Bihar Gazette Part II dated 10.09.1975 that the consolidation proceeding is going on over all the lands of four villages of Mushahari Circle and considering the same this Court abated the suit and the appeal in view of the consolidation proceedings and disposed of the appeal by order dated 23.03.1984.
4. The earlier application of the petitioner to the effect that the execution case does not abate under Section 4(c) of the said Bihar Consolidation Act was rejected by learned Sub-Judge, Muzaffarpur vide order dated 28.02.1986 and in C.R. No. 1038 of 1986 moved by the petitioner, this Court also dismissed the revision application on 16.01.1989 on the ground that once the suit and appeal abate, the judgment and decree passed in such proceeding also abates.
5. The petitioner moved before this Court in Writ Jurisdiction being CWJC No. 3791 of 2005 for revival of Execution Case No. 15 of 1967 in view of notification dated 27.07.1998 issued under Section 4A of the Bihar Consolidation Act whereby earlier notification issued under Section 3 of the Bihar Consolidation Act was cancelled and consolidation operation came to an end in the area concerned. The said writ petition was dismissed by peremptory order of dismissal. The restoration petition in the said writ petition was dismissed by this Court vide order dated 21.08.2013 observing that the said notification No. 555 dated 27.07.1998 was deleted/recalled by fresh notification No. 186 dated 15.03.2004 and, therefore, all areas including the area in question were covered by the notifications issued under Section 3 of the Consolidation Act and consolidation proceedings are going on and the petitioner cannot get benefit of the said notification dated 27.07.1998 and the prayer for revival of Execution Case No. 15 of 1967 cannot be allowed as it has become infructuous.
6. The appeal preferred by the petitioners against that the said order dated 21.08.2013 was dismissed by Division Bench of this Court vide order dated 22.02.2017 on the ground of limitation.
7. The Hon’ble Supreme Court vide order dated 13.09.2021 in Civil Appeal No. 5671 of 2021 restored the CWJC No. 3791 of 2005 to its original number, to be decided on merit. It was observed therein that “the position of the cancellation of the consolidation proceedings is confirmed both by the State counsel and the counsel for the private respondents”. In the said appeal the petitioner had filed notification issued on 19.01.2018 on record, whereby the consolidation scheme stands cancelled from the date of notification. This Court vide order dated 12.01.2022 disposed of the said writ petition with liberty to the petitioner to file Civil Miscellaneous Application under Article 227 of the Constitution of India before this Court. Accordingly, this
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