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Srinibas Jena and ors. Vs. Janardan Jena and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 33 of 1968
Judge
Reported inAIR1981Ori1; 50(1980)CLT337
ActsOrissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 - Sections 3, 4, 4(4) and 31
AppellantSrinibas Jena and ors.
RespondentJanardan Jena and ors.
Appellant AdvocateD.C. Sahu, Adv.
Respondent AdvocateP. Kar, ;G.C. Jena, ;R.M. Mohanty, ;D. Satpathy, Advs., ;S. Misra, Adv. (No. 1), ;R.C. Patnaik, ;A.K. Tripathy, ;R.K. Mohapatra, Advs. and ;S.S. Mohanty (Amicus Curiae)
Cases ReferredVenkata Reddy v. Pethi Reddy
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....p.k. mohanti, j.1. this appeal is directed against a final decree for partition.during the pendency of the appeal, the lands in dispute came under the consolidation operations on the publication of a notification issued under sub-section (1) of section 3 of the orissa consolidation of holdings and prevention of fragmentation of land act. 1972 (hereinafter referred to as the 'act'). on 19-10-79, the appellants filed a petition for an order of abatement of the appeal under section 4 (4) of the act. the prayer was resisted by the respondents on the grounds that a final decree proceeding is not covered under section 4 (4) of the act and that the rights of the parties having already been declared by a preliminary decree there could be no abatement of the suit. a division bench of this court.....
Judgment:

P.K. Mohanti, J.

1. This appeal is directed against a final decree for partition.

During the pendency of the appeal, the lands in dispute came under the consolidation operations on the publication of a notification issued under Sub-section (1) of Section 3 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act. 1972 (hereinafter referred to as the 'Act'). On 19-10-79, the appellants filed a petition for an order of abatement of the appeal under Section 4 (4) of the Act. The prayer was resisted by the respondents on the grounds that a final decree proceeding is not covered under Section 4 (4) of the Act and that the rights of the parties having already been declared by a preliminary decree there could be no abatement of the suit. A Division Bench of this Court referred the matter to a Full Bench for decision on the question of abatement.

2. The main question for consideration is whether an appeal against a final decree can abate under Section 4 (4) of the Act upon publication of the notification issued under Section 3 (1) of the Act.

3. The relevant provisions of Sec. 4 of the Act are reproduced below for ready reference:

'Sec. 4. Effect of notification. Upon the publication of the notification issued under Sub-section (1) of Section 3 in the Official Gazette, the consequences as hereinafter set forth shall subject to the provisions of this Act, ensue in the consolidation area till the publication of notification under Section 41 or sub-section (1) of Section 5 as the case may be-

(1) to (3) ...............

(4) every suit and proceedings for declaration of any right or interest in any land situate within the consolidation area in regard to which proceeding could be or ought to be started under this Act, which is pending before any Civil Court, whether of the first instance or appeal, reference or revision shall, on an order being passed in that behalf by the Court before which such suit or proceeding is pending, stand abated:

Provided that no such order shall be passed without giving the parties concerned an opportunity of being heard;

Provided further that on the issue of a notification under sub-section (1) of Section 5 in respect of the said area or part thereof,--

(a) every order passed by the Court under Clause (4) in relation to the lands situate in such area or part thereof, as the case may be, shall stand vacated; and

(b) all such suits and proceedings as are referred to in Clause (3) or Clause (4) which relate to lands situate in such area or part thereof, as the case may be, shall be proceeded with and disposed of in accordance with the law as if they had never abated.

Provided also that such abatement shall be without prejudice to the right of the person affected to agitate the right or interest which formed the subject-matter of the said suit or proceedings, before the proper Consolidation Authority in accordance with the provisions of this Act or the Rules made there under.'

4. In view of the above provisions, the following conditions must be satisfied for a suit or proceeding to abate:

(1) it must be for declaration of any right or interest in any land situate within the consolidation area.

(2) it must be for declaration of right or interest in land in regard to which proceedings could be or ought to be started under the Act.

(3) it must be pending on the date of publication of the notification under Section 3 (1) of the Act be are any Civil Court, whether of the first instance or appeal, reference or revision.

(4) the civil Court before which the suit or proceeding is pending must pass an order of abatement after giving the parties an opportunity of being heard.

5. Now the question arises whether a final decree proceeding can be characterised as a 'suit or proceeding for declaration of right or interest in any land' and thus falls within the purview of Section 4 (4) of the Act. In our opinion, a final decree proceeding cannot be considered to be either a suit or a proceeding of the nature contemplated by that provision. The language used by the legislature is 'a suit or proceeding for declaration of right or interest in land.' The use of the preposition 'for' is significant. It signifies that declaration of right or interest in land must be directly involved in the suit or proceeding. Declaration of right or interest in land is not directly involved in a final decree proceeding. It is to be mentioned in this connection that in paragraph (4) of Clause 4 of the Bill, as originally drafted and published in the Gazette, it was proposed that 'every suit and proceeding in respect of declaration of right or interest in any land......... shall be stayed and no new suit and proceeding of the above nature shall be instituted. 'But the words 'in respect of were omitted from the Act and were substituted by the word 'for'. Scope of a proceeding in respect of declaration of right or interest in land is wider than that of a proceeding for declaration of right or interest. On the language used by the legislature, we are compelled to take the view that a final decree proceeding cannot abate under Section 4 (4) of the Act.

6. A final decree proceeding does not originate in itself, but follows a preliminary decree passed in a suit. The final decree proceedings start only after determination of the rights and interests of the parties in relation to land. Under the provisions of Order 20, Rule 18, C.P.C. the preliminary decree declares the rights of the parties interested in the property. The final decree proceeding is to enforce what has already been decided, which may even mean that it excludes declaration of right and interest in land which has already been declared by the preliminary decree. The final decree proceedings only relate to matters which are provided in the preliminary decree as to physical division or as to an account for mesne profits but do not relate to the decision of any substantive rights of the parties as to title to properties.

7. The relation of a preliminary decree to a final decree was considered by Rankin, C. J. in the Full Bench case of Taleb Ali v. Abdul Aziz, AIR 1929 Cal 689, and it was held that the function of the final decree is merely to re-state and apply with precision what the preliminary decree has ordained and that the final decree is not only based on but is also controlled by the preliminary decree and cannot travel beyond it. This principle was followed by the Patna High Court in the case of Banwari Lal v. Shaikh Shukrullah, AIR 1940 Pat 204.

8. The word 'appeal' which has been used in Section 4 (4) obviously does not include an appeal arising out of a final decree as the same does not declare the right or interest of the parties, but is concerned only with certain matters pertaining to what has already been declared. Pendency of appeal against the final decree cannot take away finality of the preliminary decree which had determined the right, title and interest of the parties.

9. The preliminary decree passed in the present suit stands final and conclusive between the parties as it was not challenged by way of appeal. Under Section 97 of the Code of Civil Procedure where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. Construing the provisions of Section 97, C.P.C. the Supreme Court in the case of Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992 observed as follows:

'...... This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree,'

It was further observed:

'...... A preliminary decree passed,whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree--the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made, the decision of the Court arrived at the earlier stage also has a finality attached to it....,....'

10. If the preliminary decree had become final and conclusive, it is not open to the Consolidation Authorities to reopen the matter and come to a different conclusion. The legislature never intended to deprive a party of the fruits of the decree which has already become final. It is a widely accepted principle of law that there would be no taking away of rights of citizens by implication and whenever the legislature intends to disturb or affect such rights clear provision is made. In case the legislature really intended that final decree proceedings would abate, provision could have been made for the consolidation authorities to continue the final decree proceeding so that the decree was not disturbed and the consolidating process could also work out and keeping the preliminary decree in view allotments could be made giving effect to the Act.

11. In view of our above discussions, we give our full assent to the view expressed by one of us in the case of Nayanasundari Bewa v. Subash Chandra Behera, (1979) 47 Cut LT 488 that a final decree proceeding is not a proceeding as contemplated under Sub-section (4) of Section 4 of the Act and hence it cannot abate. This view gains support from a decision of the Allahabad High Court in the case of Rudra Pal Singh v. Ram Pal Singh, AIR 1972 All 67.

12. We may, however, observe that it is not without some hesitation that we have come to the above conclusion. While the scheme of the Act is to consolidate the fragmented holdings, the object of a final decree proceeding is to divide thelands into fragments. This appears to be an anomalous position, which, in our opinion requires legislative intervention. We would commend such a situation for. consideration of the State Government so that such anomalous situations are not permitted to arise.

13. It is now to be seen what is the effect of abatement. There is divergence of opinion between two learned Judges of this Court on the question as to whether on an order of abatement being passed, the suit is completely destroyed and wiped out of existence for all times to come or whether the suit remains in abeyance during the consolidation operation. While one of us (P. K. Mohanti, J.) in the case of Puni Bewa v. Ananta Sahoo, (1979) 47 Cut LT 494 took the view that the effect of abatement is to destroy or take away the jurisdiction of the Court and that the suit once abated cannot be revived after closure of the consolidation operation, Mr. Justice Acharya took the contrary view in AIR 1979 Orissa 159 (Adhikari Gopinath Das v. Nirmal Chandra Mohanty).

14. Ordinarily the Parliamentary history of the provisions of a section of the statute is not admissible to construe its meaning, but where it has undergone changes it is of great assistance in the matter of interpretation. In the case of R. M. D. Chamarbougwalla v. Union of India, AIR 1957 SC 628 (Para 6) it was observed as follows:--

'...... To decide the true scope of thepresent Act, therefore, we must have regard to all such factors as can legitimately be taken into account in ascertaining the intention of the legislature, such as the history of the legislation and the purposes thereof, the mischief which it intended to suppress and the other provisions of the statute and construe the language of Section 2 (d) in the light of the indications furnished by them.'

In the Central Bank of India Ltd. v. Rajagopalan, AIR 1964 SC 743, before dealing with the question of construction of Section 33-C of the Industrial Disputes Act, the Supreme Court considered it to be material to refer to the legislative history of the section.

15. In the original Bill, provision was made for stay of pending suits, but the Select Committee was of the opinion that the suits should stand abated in the interest of the progress of consolidation work and that the disputes with regard to right or interest could better be referred before the consolidation authorities who shall have power to hear and dispose them of in accordance with the provisions of the Act and the Rules made thereunder. Accordingly, paragraph (4) of Clause 4 of the Bill was re-drafted and the words 'stand abated' were used. Change of wording denotes a change of intention. The alteration in the language must be taken to have been made deliberately. In the Bill there was a provision to paragraph (4) of Clause 4 which suggested that suits and proceedings stayed under this paragraph would be disposed of after the issue of the notification under Clause 42 (corresponding to Section 41 of the Act). That proviso was omitted from the Act and another proviso was inserted entitling the person affected by the abatement to agitate the right or interest which formed the subject-matter of the pending suit, before the consolidation authorities in accordance with the provisions of the Act and the Rules. The ancestry of the provision strongly suggests that the intention was to terminate the suit completely and to confer exclusive jurisdiction on the consolidation authorities.

16. 'Stay' and 'abatement' are not synonymous. Abatement means an entire overthrow by destruction of a suit while stay is a temporary suspension of further proceedings in the suit. 'Abate' is a generic term derived from the French work 'Abattre' and signifies to quash, to beat down or destroy. According to Black's Law Dictionary, Fifth Edition, 'abate' means to throw down, to beat down, destroy, quash. The same meaning is given in the Venkataramaiya's Law Lexicon and Legal Maxims, Second Edition. According to Prem's Judicial Dictionary, 1964 Edition, Volume I in Civil Law and abatement of a suit is a complete termination of it. According to Words and Phrases, (Permanent Edition), to abate a suit is to put an end to its existence.

17. In deciding the true scope and effect of the relevant words in any statutory provision, the context in which the provision has been made, and the policy underlying the statute assume relevance and become material. The whole object of the provision of Section 4 (4) of the Act is to oust the jurisdiction of the ordinary Civil Courts for the duration of the consolidation operations. Adjudication of right or interest by the consolidation authorities was consideredmore suitable and efficacious for speedy decision which had to be taken in order to enable the consolidation operations to be finalised within a reasonable time. In order to achieve this object, the legislature in its wisdom and experience provided for abatement of suits under Section 4 (4) of the Act. The view of the legislature appears to be that the scheme of consolidation would be inordinately delayed if ordinary Civil Courts were to decide the questions of right or interest relating to land. It is well known that civil litigation usually takes a long time to come to an end and the litigants feel completely desperate. If this were to be permitted, consolidation proceedings ran the risk of being held up for an indefinite period. It is with this end in view that the word 'abate' has been used. The third proviso to Section 4 of the Act lays down that abatement of a suit shall be without prejudice to the right of the person affected to agitate the right or interest which forms subject-matter of the suit or proceeding, before the proper consolidation authority in accordance with the provisions of the Act or the Rules made thereunder. That is why in respect of most of the matters that abate, provision has been made conferring jurisdiction on the consolidation authorities to deal with. Finality is attached to the decisions of the appellate authority and the revisional authority under the Act as provided in Sections 12 and 36 (2). Section 36 (2) specifically provides that all orders passed under this section shall be final and shall not be called in question in any court of law. Section 51 bars the jurisdiction of the Civil Court to entertain any suit or proceeding in respect of any matter which the consolidation authorities are competent to decide. Sections 4 and 51 are integral parts of the same scheme, namely, that declaration of rights and interests has to be done under the Consolidation Act and nowhere else. Section 4 covers pending suits and proceedings while Section 51 forbids entertainment of suits and proceedings to that end. Thus, it is abundantly clear that the consolidation authorities have been vested with exclusive jurisdiction to decide right and interest in land during the consolidation operations and the civil court's jurisdiction has been taken away.

18. Once the parties work out their rights before the consolidation authorities and exhaust their remedies under theAct, they cannot re-agitate the same questions over again in the civil court. Those questions stand finally concluded by the decision of the consolidation authorities. The rule of res judicata is founded on the principle that a matter which has been litigated between the parties and finally adjudicated should not be allowed to be re-agitated between the same parties. It has, therefore, to be held that a decision of the consolidation authorities on questions of right, title and interest which are matters within their jurisdiction would operate as res judicata and that being so, the civil court will have no jurisdiction to hear and decide the suit afresh in the case of Smt. Raj Lakshmi Dasi v. Banamali Sen, AIR 1953 SC 33 their Lordships held

'a plea of res judicata on general principles can be successfully taken in respect of judgments of courts of exclusive jurisdiction like Revenue Courts, Land Acquisition Courts, Administration Courts etc.'

Section 47 of the Act lays down that all authorities hearing an application, appeal or revision under any of the provisions of the Act shall do so as Revenue Courts. Therefore, there is no question of the abated suit being revived after closure of the consolidation operations.

19. In the case of Ram Adhar Singh v. Ramroop Singh, AIR 1968 SC 714 a suit for recovery of possession was filed by the appellant. It was decreed by the trial court and the decree was affirmed by the appellate court as well as by the High Court in Second Appeal. Special leave to appeal to the Supreme Court was granted to the appellant under Article 136 of the Constitution. Thereafter, the notification under Section 4 of the U. P. Consolidation of Holdings Act, 1953 was issued bringing the land in dispute under consolidation operation. The appellant filed an application praying for an order of abatement in view of Section 5 of that Act which corresponds to Section 4 of the Orissa Act. The appeal pending before the Supreme Court was disposed of as having abated under Section 5 of the U. P. Act. In the case of Sukharam Singh v. Smt. Harhbeji, (Civil Appeal No. 236 of 1966 disposed of on 7-2-69) their Lordships of the Supreme Court held that the appeal before the Supreme Court could not be proceeded with since the suit out of which it had arisen was declared to have abated under Section 5 of the U. P. Consolidation of HoldingsAct. The appeal before the Supreme Court was taken to have become infructuous along with the abatement of thesuit (see 1969 SC (Notes) Item 144 at p. 101). In the case of Bhola Nath Rai v. Vishwanatha Rai (Civil Appeal No. 536 of 1966 disposed of on 27-2-69) the Supreme Court similarly held that upon notification under Section 4 of the U. P. Act being issued, the suit got abated and the appeal before the Supreme Court became infructuous (see 1969 SC (Notes) Item 422 at p. 269). Thus, the effect of abatement is that the suit is completely destroyed and wiped out of existence and the status quo as existing prior to the institution of the suit comes into operation.

20. There may be composite suits where two reliefs, namely, one relating to right or interest in land and some other independent or ancillary relief may be prayed for. In those cases abatement of the whole suit would lead to clear injustice. In our opinion, where controversy in a suit relates to right or interest in land and certain independent relief unconnected with the declaration of right or interest, the suit shall partially abate so far as the relief for declaration of right or interest only is concerned, and it will be proceeded with for determination of the other independent claim or claims. But where in addition to the relief for declaration of right or interest in land, certain ancillary relief, such as, recovery of damages or mesne profits is asked for, the suit shall only abate so far as relief for declaration of right or interest in land is concerned, and so far as the ancillary reliefs are concerned the suit shall be kept pending for decision on the ancillary relief in conformity with the decision of the consolidation authorities after closure of the consolidation operations. If a party succeeds in establishing his title, after the closure of the consolidation proceeding it would be open to it to ask for a decree for damages or mesne profits. But the position is different where the whole suit involves only declaration of right or interest in land. For instance, in a suit for possession the Court will have necessarily to adjudicate upon the right or interest of the plaintiff in respect of the suit land taking into account the claim of the defendant. In such cases, the entire suit shall stand abated.

21. In AIR 1979 Orissa 159, Mr. Justice Acharya took the view that abatementof a suit under Section 4 (4) of the Act does not mean that the suit comes to an end or that it terminates upon the publication of the notification issued under Sub-section (1) of Section 3 of the Act. It was observed that from the language of Section 4 it is clear that suits coming within the purview of Sub-section (4) cannot proceed for final decision so long as the consolidation proceedings are in progress. In support of this view, reliance was placed on the use of the word 'till' in the first paragraph of Section 4 and on paragraph 11 of the decision reported in AIR 1974 SC 1920 (The Agricultural & Industrial Syndicate Ltd. v. State of U. P.) and it was ultimately held that such a suit only remains in abeyance for the time being. We are, however, unable to subscribe to such a view.

22. No doubt, the opening paragraph of Section 4 says that the ensuing consequences are till the close of the consolidation operation, but it also says that the ensuing consequences are 'subject to the provisions of this Act'. The words 'subject to' mean 'conditional upon'. These words should be given a reasonable interpretation, an interpretation which would carry out the intention of the legislature. Section 41 of the Act provides that if the final maps and records have been prepared under Section 22, the State Government shall issue a notification to the effect that the consolidation operations have been closed in the unit and then the village or villages forming part of the unit shall cease to be under the consolidation operations. The proviso to this section, however, lays down that the issue of a notification under this section shall not affect the operation of the provisions contained in Chapter IV which relates to enforcement of the scheme of consolidation. Section 31 occurring in Chapter IV of the Act provides that when a land owner entered into possession of the Chaka allotted to him his right, title, interest and liabilities in respect of his original holding shall cease and he shall have the same right, title, interest and liabilities in the Chaka allotted to him as he had in the original holding. In view of these provisions, if the land in suit has gone finally to the Chaka of a third person, the suit cannot proceed between the parties. Even if the land in suit remains with one of the parties to the suit, the decision arrived at by the consolidation authorities will operate as res judicata. Thus, it isclear that the provisions of Section 4 of the Act are controlled by Section 31 of the Act, and hence the suit once abated cannot be revived for a fresh adjudication of right or interest in land.

23. In AIR 1974 SC 1920 relied upon by Mr. Justice Acharya their Lordships of the Supreme Court were dealing with a proceeding under the U. P. Imposition of Ceiling on Land Holdings Act. The scheme of the Ceiling Act was to allow a tenure-holder to retain such of his plots as are assigned to him as his ceiling area and to acquire the remaining plots as surplus land. While the appeal against the order of the prescribed authority was pending, the village in which the lands are situate was brought under consolidation operation. The question arose whether the proceeding under the Ceiling Act would abate according to the provisions of Section 5 of the U. P. Consolidation of Holdings Act. The purpose of the two Acts being different, their Lordships held that if the proceeding under the Ceiling Act was abated, the appellant would not retain the lands in his hand permanently or for a long time. It was accordingly held that after closure of the consolidation operations, the proceeding under the Ceiling Act might be resumed. A declaration of the surplus land with reference to specific plots could not be made under the Ceiling Act until the closure of the consolidation operations and it could be made only after the consolidation of holdings. The proceedings under the Ceiling Act was not a proceeding for declaration of any right or interest in land in regard to which proceedings could be or ought to have been taken under the Consolidation Act. In this view of the matter, their Lordships directed that the proceeding under the Ceiling Act might be resumed after closure of the consolidation operations. Thus the decision in AIR 1974 SC 1920 is clearly distinguishable.

24. In course of hearing, a recent Full Bench decision in the case of Ramkrit Singh v. State, AIR 1979 Pat 250 was placed before us. That was a writ application under Article 226 of the Constitution challenging the vires of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act of 1956. Petitioners there had filed a suit challenging certain alienations made by one of the defendants in favour of the others. The plaintiffs claimed that the alienations be vacated and possession be recovered. The properties were located in certain villages which were subjected to consolidation proceedings and defendants applied in the suit that the suit should be declared to have abated under Section 4 (c) of the Bihar Act. Since the trial court declared the suit to have abated, the writ petition was filed asking that order to be quashed. Section 4 of the Bihar Act, so far as relevant, provides:--

'Upon the publication of the notification under Sub-section (1) of Section 3 in the official gazette the consequences, as hereinafter set forth, shall subject to provisions of this Act, from the dates specified in the notification till the close of the consolidation operations, ensue in the area to which the consolidation relates, namely,............'

Keeping this provision in view, the Court observed:--

'When the section says that the ensuing consequences are till the close of the consolidation operations, we cannot nullify the words aforesaid by saying that the consequences are for all times to come. It is obvious, therefore, that on the close of consolidation operation in a village or area the abated suits would revive. But the revival of those suits would not create any problem as suits will have to be decided in conformity with the decisions arrived at in the consolidation proceedings in so far as the rights or interest in any land covered by the consolidation proceedings is concerned '

25. We have already referred to specific provisions in the Orissa Act on an analysis whereof we have come to hold that it could not be the legislative scheme that the suits which have abated would again revive. In the Bihar Act there may have been corresponding provision to the provision in the Orissa Act which we have referred to and relied upon above. No reference in the Patna judgment has, however, been made to such provisions, The reasonings which we have given do not enter into consideration of the learned Judges in the Patna case. Great emphasis was laid on the position that the legislative mandate was that from the date of notification up to the close of the consolidation proceedings the consequences were to be in force and, therefore, they went by the concept of eclipse and justified their conclusion by saying that once the eclipse lapsed, the matter which was eclipsed revived. Eclipse certainly is not abatement. We are inclined tothink that if the provisions in the Orissa Act which we have referred to exist in the Bihar Act and if they were referred to, the conclusion would not have been the one that has been reached in the reported decision. At any rate, giving our thoughtful consideration to the matter, we are at a loss to find that we cannot agree with the view expressed by the learned Judges in the Full Bench case of the Patna High Court. We endorse the decision of the learned single Judge in (1979) 47 Cut LT 494 that once there is abatement in terms of Section 4 (4) of the Act, there is no revival even after the notification under Section 41 of the Act is made. The single Judge decision in AIR 1979 Orissa 159 is overruled. 26. Our conclusions, therefore, are:

(1) Once a suit abates upon notification under Section 3 being issued, it does not revive upon closure of the consolidation proceedings.

(2) A final decree proceeding in a suit for partition does not abate under Section 4 (4) of the Act.

27. In the result, we hold that this appeal cannot abate under Section 4 (4) of the Act. The appeal shall now go back to the Division Bench for decision on merits.

28. Before finally concluding, we must express our appreciation for the assistance rendered by M/s. R.K. Moha-patra and Samareswar Mohanti, Advocates, who appeared amicus curiae and tried to meet the questions raised at the Bar with ability and fairness.

R.N. Misra, J.

29. I agree with the conclusions.

30. During hearing of this appeal a commentary on the Act by Shri R.N. Das, Advocate, was referred to. At page 31 of the book (First Edition), the commentator has referred to a single Judge decision of one of us (Mohanti, J.) in the case of Nayanasundari v. Subash, (1979) 47 Cut LT 488. The commentator has expressed the view that reliance was wrongly placed on the Allahabad decision in AIR 1972 All 67 as that decision does not support the learned single Judge's view. I think that learned single Judge had stated earlier in his judgment that adjudicated rights under the preliminary decree were not intended to be effaced away and for that purpose reliance had been placed on the Allahabad judgment. The Allahabad judgment had relied upon a decision of the SupremeCourt in Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992 for his view.

We have now held that the final decree proceeding does not abate and it, therefore, follows that the commentator had entertained a wrong view and the learned single Judge was right.

Panda, J.

31. I agree.


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