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Lakhpati Singh Vs. Raghunath Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 1157 of 1974
Judge
Reported inAIR1974All479
ActsUttar Pradesh Consolidation of Holdings Act, 1954 - Sections 5(2); Code of Civil Procedure (CPC) , 1908 - Sections 144
AppellantLakhpati Singh
RespondentRaghunath Singh and ors.
Advocates:K.M. Dayal, Adv.
DispositionPetition dismissed
Excerpt:
- - once the suit has abated no party can take advantage or enjoy the benefit of the decree which has been set aside with the abatement of the suit......advantage or enjoy the benefit of the decree which has been set aside with the abatement of the suit. proceedings under section 144, c.p.c. follow as a necessary consequence to the abatement of the suit. the order passed by the court below does not thus suffer from any error of law.4. learned counsel contends that the amended section 5(2) of the u. p. consolidation of holdings act refers to all proceedings and hence proceedings under section 144, c.p.c. will also be governed by section 5(2), and because proceedings regarding this land are pending before the consolidation authorities, proceedings under section 144, c.p.c. should also stand abated under section 5(2). the contention is that clause (b) of sub-section (2) of section 5 should be deemed to refer to proceedings under section.....
Judgment:
ORDER

1. This petition has been filed for quashing the proceedings under Section 144, C.P.C. on the ground that a notification under Section 4 of the U. P. Consolidation of Holdings Act has been issued in respect of the village in which the land in dispute lies.

2. Learned counsel has contended that after the trial court's decree it was put into execution and possession was obtained by the petitioner. Thereafter an appeal had been filed by the judgment-debtor. During the pendency of the appeal consolidation proceedings commenced. The appeal and the suit accordingly abated under Section 5 of the Consolidation of Holdings Act. The judgment-debtors thereupon applied under Section 144, C.P.C. for restitution. The court below has directed the restitution. The petitioner has now challenged that order through this petition.

3. Once the suit has abated under law, the effect will be that everything done by the Court in that suit will have to be reversed and the parties will have to be put back to the same position in which they were on the date of the institution of the suit. The purpose of Section 144, C.P.C. is exactly the same. Once the suit has abated no party can take advantage or enjoy the benefit of the decree which has been set aside with the abatement of the suit. Proceedings under Section 144, C.P.C. follow as a necessary consequence to the abatement of the suit. The order passed by the court below does not thus suffer from any error of law.

4. Learned counsel contends that the amended Section 5(2) of the U. P. Consolidation of Holdings Act refers to all proceedings and hence proceedings under Section 144, C.P.C. will also be governed by Section 5(2), and because proceedings regarding this land are pending before the consolidation authorities, proceedings under Section 144, C.P.C. should also stand abated under Section 5(2). The contention is that Clause (b) of Sub-section (2) of Section 5 should be deemed to refer to proceedings under Section 144, C.P.C. also, and as such the proceedings for restitution should also be deemed abated under Clause (a) of Section 5(2) of the Act. Section 5(2) and (b) read as under:

'(a) Every proceedings for the correction of records and every suit and proceeding 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 shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceedings is pending stand abated.

(b) Such abatement shall be without prejudice to the right of the person affected to .agitate the right or interest in dispute in the said suit or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder.'

Clause (b) itself refers to Clause (a) and no proceeding can abate unless it is a proceeding mentioned in Clause (a). Proceedings under Section 144, C.P.C. in our opinion, are not such proceedings as are contemplated by Section 5(2) of the U. P. Consolidation of Holdings Act. Under Section 144, C.P.C. the Court only undoes what it did on the basis of a decree which no longer remains in existence, and this can be done only by the court Which had executed the decree, and not by consolidation authorities.

The petition accordingly fails and is dismissed.


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