Hari Narain Singh v. Jabit Singh — 1992 DIGILAW 155 (PAT)

Judgment NAGENDRA RAI, J. 1. Both these civil revision applications arise out of the same matter and the question of law involved in both the applications is the same and as such they are being disposed of by this common judgment. 2. Civil Revision No. 1812 /86 is directed against the order dated 23-4-1985, passed by the Second Additional District Judge in Title Appeal No. 40 of 1977; whereby, he has held that the Title Appeal and the Title Suit, out of which the appeal arose have abated under S. 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Consolidation Act). 3. Civil Revision No. 1906 / 86 is directed against the order dated 2-8-1986, passed by the Execution Munsif, Arrah, in Execution Case No. 60 / 77 dismissing the execution case on the ground that the decree in pursuance of which the execution case was levied, has become non est in the eye of law after the abatement of the suit and appeal under the provisions of the Consolidation Act. 4. The question involved in both the civil revision applications is as to whether the appellate court has jurisdiction to entertain and decide the question of abatement of the appeal and the suit out of which appeal arises under S. 4(c) of the Consolidation Act after the appeal has abated under O. XXII, R. 4 read with R. 11 of the Code of Civil Procedure for non-substitution of the heirs and legal representation of some of the deceased/ respondents in the appeal. 5. Civil Revision No. 1812 / 86 was placed before one of us (B. N. Agrawal, J.) for hearing and considering the importance of the question of law involved in the case, referred the same to a Division Bench for an authoritative pronouncement. Civil Revision No. 1906/86 was placed for hearing before the learned single Judge of this Court, who, by order dated 14-2-1989, directed that the same should be heard along with Civil Revision No. 1812 / 86 and that is how both the civil revision applications have been placed before us for hearing. 6. Civil Revision No. 1906/86 was placed for hearing before the learned single Judge of this Court, who, by order dated 14-2-1989, directed that the same should be heard along with Civil Revision No. 1812 / 86 and that is how both the civil revision applications have been placed before us for hearing. 6. The plaintiffs, who are petitioners and opposite party third set in the present revision applications, filed the suit for declaration of their right, title and interest over the suit land and for recovery of possession after evicting the defendants-opposite parties 1st and 2nd sets and also nor an injunction restraining them from interfering with their possession. 7. The trial court decreed the suit on contest against defendant No. 4 and ex parte against other defendants by a judgment and decree dated 21-1-1977. Defendants-opposite parties preferred Title Appeal No. 40/77 against the aforesaid judgment and decree before the District Judge, which was, ultimately transferred to the court of Second Additional District Judge. During the pendency of the appeal the defendants-opposite parties on 15-6-1978 filed an application stating that a notification under S. 3 of the Consolidation Act has been issued with regard to the village in question where the suit land is situated and, accordingly, the appeal as well as title suit, out of which the appeal arose, abated under S. 4(c) of the Consolidation Act. It further appears from the record that respondents Nos. 8 and 9 died during the pendency of the appeal and their heirs and legal representatives were not brought on the record. 8. The learned Additional District Judge, by order dated 28-6-1978 allowed the application and held that the appeal and the title suit both have abated under S. 4(c) of the Consolidation Act. One of the plaintiffs, namely, Sahdeo Singh, filed Civil Revision No. 1841/78 before this Court and the said revision application was allowed on 19-5-1982 on the ground that no opportunity of hearing was given to all the interested parties and the case was remitted back to the lower appellate court for a fresh decision on the question of abatement of the suit and appeal under S. 4. (c) of the Consolidation Act after giving an opportunity of hearing to the parties. (c) of the Consolidation Act after giving an opportunity of hearing to the parties. While remitting back the case to the court below, this Court also directed the court below to consider the question as to whether on account of non-substitution of the heirs of two deceased respondents, who died during the pendency of the appeal in the court below, the whole appeal has become incompetent. 9. After remand the court below considered both the questions and disposed of the matter by judgment dated 23-4-1985 holding that the appeal abated on account of non-substitution of the heirs and legal representatives of the deceased respondents Nos. 8 and 9, whose names were expunged from the records and whole appeal became incompetent. It also held that the suit and appeal both abated under S. 4(c) of the Consolidation Act. 10. The petitioners filed review application against the judgment dated 23-4-1985 before the court below, which was rejected on 3-7-1986 and, thereafter, they filed the Civil Revision No.1812/86 against the aforesaid order dated 23-4-1985. There was delay in filing the civil revision application (No. 1812 / 86) so it was filed with a limitation petition and the delay in filing this application was condoned, by this Court. 11. The plaintiffs- petitioners levied Execution Case No. 60 of 1977 in pursuance of a decree passed by the court below, after the abatement of the suit and the appeal by the judgment of the appellate court dated 23-4-1985 the defendants-judgment debtors filed an objection on 2-7-1986 before the Executing Court praying therein to dismiss the execution case on the ground that the suit and appeal both have abated and there was no decree which wass to be executed against them The plaintiffs-decree holders filed a rejoinder on 18-6-1986 to the said objection petition and stated therein that the appellate court has found that the whole appeal has become incompetent for non-substitution of the heirs of deceased respondents Nos. 8 and 9 and in that view of the matter the subsequent finding given by the appellate court that the suit and appeal both have abated under S. 4(3) of the Consolidation Act is of no legal consequence and the decree of the trial court was a valid decree in the eye of law. 12. 8 and 9 and in that view of the matter the subsequent finding given by the appellate court that the suit and appeal both have abated under S. 4(3) of the Consolidation Act is of no legal consequence and the decree of the trial court was a valid decree in the eye of law. 12. The learned Munsif by order dated 2-8-1986 allowed the objection of the judgment debtors and held that the decree of the trial court has become non est in the eye of law after abatement of the suit and appeal and, accordingly, dismissed the execution case. 13. Mr. Markandey Singh, learned counsel appearing for the petitioners in both the cases, contended that once the whole appeal became incompetent for non-substitution of the heirs and legal representatives of the deceased respondent Nos. 8 and 9 under the provision of O. XXII, R. 4 read with R. 11, C. P. C. there was no competent appeal in the eye of law pending before the appellate court when the question of abatement of the appeal under S. 4(c) of the Consolidation Act was being considered and as such the appellate court had no jurisdiction to pass an order of abatement of the suit and the appeal on the petition filed by the defendants-respondents under S. 4(c) of the Consolidation Act. 14. Mr. Baxi, S. R. P. Sinha. appearing on behalf of opposite party in C. R. No. 1906/86, on the other hand, contended that the court below was competent to pass an order regarding abatement of the suit under the Consolidation Act, as there was a direction by this Court to consider the said question along with the question of abatement of the appeal for non-substitution of the heirs of deceased respondents Nos. 8 and 9 who died during the pendency of the appeal. He also contended that as the consolidation operation was going on in the area with regard to the land in question the appeal and the suit, out of which the appeal arose, both abated under S. 4(c) of the Consolidation Act and the decree of the trial court became non est in the eye of law. 15. He also contended that as the consolidation operation was going on in the area with regard to the land in question the appeal and the suit, out of which the appeal arose, both abated under S. 4(c) of the Consolidation Act and the decree of the trial court became non est in the eye of law. 15. In view of the aforesaid submissions advanced on behalf of the parties, the only question that falls for determination in the case is as to whether the appellate court has power to pass an order under S. 4(c) of the Consolidation Act after the appeal has abated under the provision of the Civil Procedure Code for non-substitution of the heris of deceased respondents during the pendency of the appeal. 16. The admitted facts are that respondents Nos. 8 and 9 died during the pendency of the appeal and their heirs and legal representatives were not substituted in their places. It is also an admitted position that during the pendency of the appeal a notification under S. 3 of the Consolidation Act was issued by the State Government declaring its intention to make a scheme for consolidation of holdings in the area where the suit land is situated. 17. It is well settled that no specific order of abatement of proceeding is envisaged in one or the other provisions of O. XXII of the Civil Procedure Code and the abatement takes place automatically upon an eventuality and by passage of time and it is not necessary to pass a formal order for that purpose. If parties to the proceeding die in the trial court or in the appellate court and the right to sue survives and if no substitution is made and the heirs and legal representatives are not brought on the record within the time the case would result in the abatement of the proceeding. If the death takes place in the trial court the suit abates. If the death takes place during the appellate court the appeal abates but it will have no impact on the judgment and decree under appeal. The judgment under appeal becomes final. 18. The abatement of the proceeding under the Consolidation Act is dealt with under S. 4 of the Consolidation Act and the relevant portions of the same for the purpose of the present case are as follows :- Sec 4. The judgment under appeal becomes final. 18. The abatement of the proceeding under the Consolidation Act is dealt with under S. 4 of the Consolidation Act and the relevant portions of the same for the purpose of the present case are as follows :- Sec 4. Effect of notification under S. 3(1) of the Act. - Upon the publication of the notification under sub-sec. (1) of S. 3 in the official gazette the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified in the notification till the close of the consolidation operation, ensue in the area to which the notification relates, namely- (a) and (b). . . .... .... (c) every proceeding for the correction of records and every suit and proceedings 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 stands abated. There are five provisos to the aforesaid section, but the relevant proviso for disposal of the present application is the second proviso, which runs as follows : - "Provided also that no such order shall be passed without giving to the parties notice by post or in any other manner that may be convenient and after giving them an opportunity of being heard." A bare reading of the aforesaid provision will show that upon the publication of notification under Sec. 3(1) of the Consolidation Act, the consequences mentioned in Sec. 4 shall ensue. One of such consequences as provided is mentioned in sub-clause (c). One of such consequences as provided is mentioned in sub-clause (c). According to sub-clause (c) that every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest or for any other right, as enumerated in the said sub-clause in respect of the land lying in the area in regard to which the proceeding can or ought to be taken under the Consolidation Act pending before any court or authority, whether of the first instance or of appeal or revision shall stand abated on an order being passed in that behalf by the court or authority before whom the aforesaid suit or proceeding is pending. According to second proviso, no order for the abatement shall be passed unless the parties are noticed and have been given opportunity of being heard. It is clear from the said provision that there is no automatic abatement of the suit, appeal or revision in the sense that after the issuance of notification under Sec. 3 of the Consolidation Act the suit or appeal or revision of the types mentioned in sub-clause (c) shall stand abated. The abatement of the suit or appeal etc. is dependent upon passing of an order by the court or the authority after hearing the necessary parties. This, in my opinion, can be done only when a competent suit, appeal or revision and other proceeding is pending before the court or the authority, as the case may be. 19. If the appeal pending before the court is not competent appeal in the eye of law, the court cannot pass an order under Sec. 4(c) of the Consolidation Act for the simple reason that due to incompetency of the appeal the decree under appeal attains finality. 20. The appeal may be incompetent for several reasons. It may be incompetent because it has abated for non-substitution of the heirs and legal representatives of the deceased appellant / respondent or it may be incompetent because of non-filing of a copy of the decree or it may be barred by limitation or the incompetency may be as the appeal has been filed without impleading necessary party or any of the respondents. There may be other grounds also for the incompetency of the appeal, but it is not necessary to enumerate the same in the present case. There may be other grounds also for the incompetency of the appeal, but it is not necessary to enumerate the same in the present case. In a case of appeal or revision an order of abatement under the Consolidation Act is passed with regard to the abatement of appeal or revision, as the case may be, as well as the suit, out of which the appeal or revision arises. In a case of incompetent appeal or revision, no such order can be passed for the obvious record that the judgment and decree under appeal or revision attain its finality and in that view of the matter no order can be passed by the appellate court or revisional court with regard to the judgment and decree, which have already attained finality. 21. The distinction between the abatement under the Code of Civil Procedure and the abatement under the Consolidation Act was noticed by the Supreme Court in the case of Mst. Bibi Rahmani Khatoon V/s. Harkoo Cope, AIR 1981 SC 1450 , which is as follows "The concept of abatement is known to civil law. If a party to a proceeding either in the trial court or any appeal or revision dies and the right to sue survives or a claim has to be answered, the heirs and legal representatives of the deceased party would have to be substituted and failure to do so would result in abatement of proceedings. Now, if the party to a suit dies and the abatement takes place, the suit would abate. If a party to an appeal or revision dies and either the appeal or revision abates, it will have no impact on the judgment, decree or order against which the appeal or revision is preferred. In fact, such judgment, decree or order under appeal or revision would become final. Such is not the scheme of abatement as conceived by S. 4 of the Act. Here, if the abatement as is conceptually understood in the Code of Civil Procedure is imported, it will do irreparable harm. In fact, such judgment, decree or order under appeal or revision would become final. Such is not the scheme of abatement as conceived by S. 4 of the Act. Here, if the abatement as is conceptually understood in the Code of Civil Procedure is imported, it will do irreparable harm. To illustrate, if an appeal abates rendering either the trial court judgment or the judgment in first appeal final and binding, the consolidation authorities would also be bound by it and the party whose appeal or revision abated would lose its chance of persuading the appellate or revisional authority to accept its case which may result in interfering with or setting aside the judgment, order or decree in appeal. Such was not and could not be the intention of S. 4. This becomes manifestly clear from the proviso to clause (c) of S. 4 extracted hereinabove which shows that such abatement shall be without prejudice to the rights of the person affected to agitate the rights or interest in dispute in the suit or proceeding before the appropriate consolidation authorities under and in accordance with the provisions of the Act. No one would, therefore, stand to suffer on account of the abatement because there is a special forum carved out for adjudication of the rights which were involved in proceedings which would abate as a consequence of the notification under Sec. 3 . . . . . . . . Therefore, the legislature intended that not only the appeal or revision would abate but the judgment, order or decree against which the appeal is pending would also become non est as they would also abate and this would leave consolidation authority free to adjudicate the claims of title or other rights or interest in land involved in consolidation-....." 22. Thus, it must be held that pendency of a competent appeal is a condition precedent for passing an order under Sec. 4(c) of the Consolidation Act and if the appeal has abated under the Code of Civil Procedure, then no competent appeal in the eye of law is pending before the court and in that view of the matter the appellate court has no jurisdiction to pass an order under Sec. 4(c) of the Consolidation Act for the abatement of the appeal and the suit. The same principle will apply even with regard to incompetent suits. 23. The same principle will apply even with regard to incompetent suits. 23. Coming to the facts of the present case, it is evident that the court below has found that the appeal has abated against the heirs of respondents Nos. 8 and 9 and the whole appeal has become incompetent and the said finding has not been challenged before this Court by the opposite party. In such a situation no competent appeal in the eye of law was pending before the appellate court, as such the appellate court had no jurisdiction to pass an order under Sec. 4(c) of the Consolidation Act and, accordingly, the order dated 23-4-1985 passed by the appellate court holding that the appeal and the suit both have abated are set aside and Civil Revision No. 1812/86 is allowed. 24. As the appeal and the suit did not abate under the Consolidation Act, the executing court was not justified in law in holding that the decree of the court below has become non est and, accordingly, the order dated 23-4-1985 passed by the executing court is also set aside and Civil Revision No. 1906/86 is allowed. The executing court will proceed with the execution case. 25. In the result, both the civil revision applications are allowed. However, in the facts and circumstances of the case, there will be no order as to costs. Revision allowed.