JUDGMENT K. P. Singh, J. 1. THIS writ petition is directed against the judgment of the Board of Revenue dated 15-12-1976 whereby the review petition was allowed and the suit giving rise to the review petition was abated under section 5 of the U. P. Consolidation of Holdings Act. 2. NECESSARY facts giving rise to the present writ petition are that the petitioners got ex-parte decree in a partition suit. That decree was sought to be set aside by opposite party no. 9 Smt. Subhadra Devi. The application for setting aside the ex-parte decree was allowed by the first appellate court on 7-1-69. During the pendency of the Second Appeal an application was moved on behalf of Smt. Subhadra Devi that she did not want to press her application for setting aside the ex-parte decree, hence the learned Member Board of Revenue dismissed the application and maintained the final decree passed in the suit through his order dated 4-3-1974. Aggrieved by the judgment of the learned Member one Badri Nath applied for review of the order dated 4-3-74 which has been allowed by the Board through its order dated 10-12-1976. Aggrieved by that order the plaintiff-petitioner has approached this Court under Article 226 of the Constitution. The learned counsel for the petitioners has contended before me that before second appellate court the only question involved was as to whether ex-parte decree against the defendant could be set aside or not. Hence the application for setting aside the ex-parte decree could not be abated under the provisions of section 5 of the U. P. Consolidation of Holdings Act and the Board of Revenue has patently erred in allowing the review application and abating the suit under section 5 of the U. P. Consolidation of Holdings Act. 3. THE second contention raised on behalf of the petitioners is that Badri Nath had no right to file review petition and at his instance the Board of Revenue has patently erred in interfering with the earlier order of the learned Member Board of Revenue dated 4-3-1974. 4. THE learned counsel for the contesting opposite party has tried to support the impugned judgment of the Board of Revenue. It has not been disputed before me that on 7-1-1969 ex-parte decree against the defendant was set aside. On 11-9-1971 consolidation proceedings were started in the village in which the disputed land is situate. 4. THE learned counsel for the contesting opposite party has tried to support the impugned judgment of the Board of Revenue. It has not been disputed before me that on 7-1-1969 ex-parte decree against the defendant was set aside. On 11-9-1971 consolidation proceedings were started in the village in which the disputed land is situate. The question for consideration arises whether the learned Member could hear the second appeal on merits or pass final order in the appeal before him. 5. SECTION 5 (2) of the U. P. Consolidation of Holdings Act reads as below ;- Sec. 5 : " Upon the publication of the notification (under sub-section (2) of SECTION) in the Official Gazette, the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified there-under till the publication of notification under section 52 or sub-section (1) of section 6, as the case may be, ensue in the area to which the notification under section 4 (2) relates, namely- (a)............ (b)............ (c) ............ (2) Upon the said publication of the notification under sub-section (2) of section 4, the following further consequences shall ensue in the area to which the notification relates, namely- (a) every proceeding 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 proceeding is pending, stand abated : " 6. THE contention of the learned counsel for the petitioners before me is that the question for consideration before the learned Member, Board of Revenue on 4-3-1974 was as to whether the ex-parte decree was rightly set aside by the first appellate court through its order dated 7-1-1969 or not hence the proceedings before the Board could not be abated in view of the above-quoted provision. To my mind the contention raised on behalf of the petitioner is not correct The moment ex-parte decree was set aside by the first appellate court the suit became pending. To my mind the contention raised on behalf of the petitioner is not correct The moment ex-parte decree was set aside by the first appellate court the suit became pending. The question for consideration as to whether the ex-parte decree was rightly set aside or not would be determined only when the Court before whom the proceeding is pending could look into the merits of the claim. 7. IN the present case ex-parte decree had already been set aside on 7-1-1969 and the village in which the disputed land is situate came under the consolidation operation on 11-9-1971. Hence the court could only abate the suit and could not go into merits as to whether the ex-parte decree was rightly set aside or not. The learned Member on 4-3-1974 on the statement of the applicant for setting aside the ex-parte decree dismissed the application and maintained the final decree passed in the suit; The order dated 4-3-1974 has been set aside by the impugned judgment dated 16-2-1976 and the suit has been abated. IN the circumstances of the present case I think that the review petition was rightly allowed by the Board on 15-12-1976 and the suit was rightly abated under section 5 of the U. P. Consolidation of Holdings Act. 8. IN Paras Nath v. Gaon Sabha, 1975 RD 52 a learned Member Board of Revenue has observed as below :- " The suits were restored on June 10, 1971. Notification under section 4(2) of the UP CH Act was published when the revisions were pending before the Additional Commissioner. The suits having been pending when the notification under section 4 (2) of the UP CH Act was published the suits and the revisions are liable to be abated under section 5 (2) (a) of the UP CH Act. The position would have been different if the Restoration applications had been rejected. IN that case the suits and the revisions could not be abated under section 5 (2) (a) of the UP CH Act. The case reported in 1964 RD at page 197 does not apply to the facts of the present case. " In my opinion the learned Member has correctly observed above. Viewed from this angle I find that the learned Members have not patently erred in allowing the review petition and abating the petitioners' suit under section 5 of the UP CH Act. 9. " In my opinion the learned Member has correctly observed above. Viewed from this angle I find that the learned Members have not patently erred in allowing the review petition and abating the petitioners' suit under section 5 of the UP CH Act. 9. AS regards the second contention of the learned counsel for the petitioners that Badri Nath had no right to file review application it is enough to indicate that when the ex-parte decree was set aside all the defendants could agitate the final order passed in the suit. Hence when the applicants did not press her application and final order was passed by the learned Member on 4-3-1974, the other defendants had a right to challenge the order dated 4-3-1974. Therefore I am unable to accept the contention of the learned counsel for the petitioners that at the instance of the applicant Badti Nath the review petition could not be entertained or allowed. 10. IN the result both the contentions raised on behalf of the petitioners fail and the writ petition has no legs to stand. Accordingly the writ petition is dismissed and parties are directed to bear their own costs. Petition dismissed.