Jagdish Prasad v. Satya Narain Singh — 1981 DIGILAW 135 (PAT)

Judgment B.P.JHA, J. 1. Defendant No.2 has preferred an appeal under O. XLIII, R.1(d) of the Civil P.C. against an order dated 7th July, 1973, passed by the Subordinate Judge, Sasaram. 2. In the present case the plaintiffs filed a suit for partitioning the suit properties. Plaintiff No.1 and his sons claimed one-fifth share in the suit properties. Ram Prasad Seth (defendant No.1) had three sons, namely, plaintiff No.1 and defendants Nos.2 and 3. Defendant No.7 was the wife of defendant No.1 and mother of plaintiff No.1 and defendants 2 and 3. It appears from the order sheet dated 11th Apr. 1969 of the trial Judge that summons and notices were served in respect of the suit on the defendants. It also appears from the order sheet dated 28th Jan. 1969, that defendant No.1 (the father) and defendant No.7 (the mother of plaintiff No.1 and defendants 2 and 3) appeared through Shri Janki Raman Sharma, Advocate. In spite of service of summons defendant No.2 did not appear to prosecute the suit. The suit was heard ex parte on 20th Nov. 1969. PW Sardar Satya Narain Singh was examined. He heard argument of the plaintiffs on 20th Nov. 1969, and directed to put up the case for orders on 21st Nov. 1969. On 21st Nov. 1969, the ex parte decree was passed. 3. It appears from the order dated 21st Nov, 1969, that Ram Prasad Seth had three sons, namely, the plaintiff No.1 and defendants 2 and 3. It is for this reason that the court granted one- fifth share to plaintiff No.1, one-fifth share to defendant No.1 (father), one-fifth share to defendant No.2 (son of Ram Prasad Seth), one-fifth share to defendant No.3 (another son of Ram Prasad Seth) and one-fifth share to defendant No.7 (wife of defendant No.1 and mother of plaintiff No.1 and defendants 2 and 3). In my opinion, the judgement is perfectly all right and in accordance with law. 4. Though the order was passed on 21st Nov. 1969, defendant No.2 filed a petition on 28th Sept. 1970, under Order IX, R.13 of the Civil P.C. for setting aside the ex parte decree. The application for setting the ex parte decree was dismissed for non-prosecution on 7th July, 1973. Defendant No.2 had filed an application for adjournment on that date. Though the order was passed on 21st Nov. 1969, defendant No.2 filed a petition on 28th Sept. 1970, under Order IX, R.13 of the Civil P.C. for setting aside the ex parte decree. The application for setting the ex parte decree was dismissed for non-prosecution on 7th July, 1973. Defendant No.2 had filed an application for adjournment on that date. The court below refused to grant the adjournment on the ground that the miscellaneous case was pending since 1970. Hence the application under O. IX, R.13 of the Civil P.C. was rejected. It is against that order, the appellant (defendant No.2) has preferred an appeal before this court. 5. In my opinion justice has been done to the appellant in the ex parte decree passed on 21st November, 1979. Even if the appellant would have contested the case, he would have got one-fifth share in the suit properties which he got in the ex parte decree, on the basis of the ex parte order, a preliminary decree was prepared. Thereafter we have been informed by learned counsel for the parties that a final decree has also been prepared. Against final decree there was a First Appeal, being First Appeal No.429 of 1973 which was preferred by defendant No.2. We have further been informed by learned counsel for the parties that the First Appeal was dismissed for non-prosecution by an order dated 7th Feb., 1979. We have also been informed by learned counsel for the appellant that a restoration petition is pending for disposal. 6. So far as the present appeal is concerned, in my opinion, the application filed under O. IX R.13 of the Civil P.C. was barred by limitation. The ex parte decree was passed on 21st Nov., 1969 and the application under O. IX, R.13 was filed on 28th Sept., 1970. Under Art.123 of the Limitation Act defendant No.2 was required to file an application for setting aside the decree within thirty days from the date of the decree or, where the summons or notice was duly served, then from the date of the knowledge to the applicant in respect of the decree. Admittedly, the application for setting aside the decree was filed after ten months. The applicant was entitled to get the benefit about knowledge of the decree only when summons or notice was not duly served. Admittedly, the application for setting aside the decree was filed after ten months. The applicant was entitled to get the benefit about knowledge of the decree only when summons or notice was not duly served. In the present case the order sheet dated 11th April, 1969, clearly suggests that the notice or summons was duly served upon the defendants including defendant No.2. In this circumstance defendant No.2 - the appellant, is not entitled to count the days of limitation from the date of knowledge of the decree. If it is so, the application of defendant No.2 is barred by limitation. This appeal can be dismissed on this ground alone. 7. Learned counsel for the appellant contends that a consolidation proceeding is going on in the suit area and as such the appeal will abate under Sec.4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act. No doubt, under S.4(c), a suit, appeal, reference or revision abates if consolidation proceeding is going on in the suit area. Here the matter is quite different. In the present case, a preliminary decree was passed and thereafter a final decree was also passed. Against the final decree First Appeal No.429 of 1973 was preferred by defendant No.2 which was also dismissed for non-prosecution. The result will be that the final decree was also affirmed by the High Court and the suit was finally disposed of. The abatement will take place under S.4(c) in respect of a proceeding or suit pending before a Court with respect to declaration of rights or interest in any land where the consolidation proceeding is going on. In the present case the suit commenced by filing the plaint and the suit came to an end when a preliminary decree was passed. Therefore, neither the preliminary decree nor the final decree will abate under S.4(c) as there is no such provision under S.4(c) of the Act. The Act envisages abatement of a suit, appeal, reference or revision. Preliminary decree or final decree will not come either within the purview of suit, appeal, reference or revision. Hence Sec. 4(c) will not apply in the present case. The Act envisages abatement of a suit, appeal, reference or revision. Preliminary decree or final decree will not come either within the purview of suit, appeal, reference or revision. Hence Sec. 4(c) will not apply in the present case. This was the view of a Division Bench of this Court in Nathuni Ram V/s. Smt. Khira Devi (judgement dated 8th July, 1981, in F.A. No.108 of 1967).*In that case it has been held that the preparation of final decree is neither a suit nor a proceeding for declaration of any right in the suit and as such, such proceeding is not hit by S.4(c) of the Act. This view is also being supported by a Full Bench decision of Orissa High Court in Srinibas Jena V/s. Janardan Jena (AIR 1981 Orissa 1). * Reported in 1981 BBCJ (HC) 413 8. Learned counsel for the appellant relies on a Supreme Court decision in Ram Adhar Singh V/s. Ramroop Singh ( AIR 1968 SC 714 ). In that case their Lordships have not come to the conclusion that either a preliminary decree or a final decree will abate while consolidation operation is going on in the suit area. Therefore, this decision does not apply to the facts of the present case. In another decision in Satyanarayan Prasad Sah V/s. State of Bihar ( AIR 1980 SC 2051 ) their Lordships of the Supreme Court held that the High Court should not have nullified the decree of the trial Court while passing an order under S.4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act. This decision is against the appellant. This decision was again followed by the Supreme Court in Mossomat Bibi Rahmani Khatoon V/s. Harkoo Gope (1981 BBCJ 197) : ( AIR 1981 SC 1450 ). The decision in Satyanarayan Prasad Sahs case (supra) was neither distinguished nor overruled by the Supreme Court in Mossomat Bibi Rahmani Khatoons case. In other words, the former decision was upheld by the later decision of the Supreme Court. The decision in Satyanarayan Prasad Sahs case (supra) was neither distinguished nor overruled by the Supreme Court in Mossomat Bibi Rahmani Khatoons case. In other words, the former decision was upheld by the later decision of the Supreme Court. In the operative portion of the judgement the Supreme Court held as follows (at p.1455 of AIR):- "....the title of the appellants declared by the trial court in respect of Khata No.458 (nakdi) has become unchallengeable at the hands of Brahamadeo or anyone claiming through him and the abatement of the second appeal will have no impact on the title of the appellants to Khata No.458. In my opinion, the Supreme Court did not differ with the principle laid down in the former case of Satyanarayan Prasad Sah. Hence we are of the opinion that under S.4(c), a suit, an appeal, a reference or a revision will abate and neither a preliminary decree nor a final decree will abate. Hence, we dismiss the petition filed by the appellant under S.4(c) of the Act. Even if it is held that the appeal abates under S.4(c) of the Act, the effect will be that it will not help the party inasmuch as even if the appeal abates, the final decree remains alive. The suit comes to an end when a preliminary decree is passed for the purpose of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act. Hence, in this circumstance, in any event, I dismiss the appeal. 9 In the result, the appeal is dismissed. The parties shall bear their own costs. U.C.SHARMA, J. 10 I agree that the appeal be dismissed.