BAGESHWARI DEVI Vs. SHEO KUMAR MISHRA

JUDGEMENT

(1.) THIS application in revision has been filed against the order dated 16.9.2000 passed in T.S.No. 52/96 whereby the court has held that the suit has abated in view of the provision of Section 4(1)(c) of the Consolidation of Holdings and Prevention of Fragmentation Act (hereinafter referred to as the 'Consolidation Act '). The office has raised objection about maintainability of the Civil Revision application on the basis of the order dated 26.11.1996 passed in Civil Revision No. 1390/90 whereby it has been held that Civil Revision is not maintainable.

(2.) THE concept of abatement has come from Civil Law. In case of death of the parties in a proceeding either in the trial court, appeal or revision the heirs of deceased is required to be substituted and if not substituted such proceeding abates. In case of appeal or revision it has no effect on the judgment, decree and order against which appeal or revision is preferred. In other words, the judgment, decree or order under appeal or revision would become final. In the case of consolidation proceeding as soon as the Notification u/s 3 of the Consolidation Act is made the proceeding before the Civil Court either in trial, appeal or revision abates u/s 4(1)(c) of the Consolidation Act. The object of such provision is to ensure unhamperred adjudication of claim to land before the authorities under the Consolidation Act. The Apex Court in the case of Most. Bibi Rahmani Khatoon and ors. vs. Harkoo Gope and ors., A.I.R. 1981 S.C.1451 has held that abatement as conceived u/s 4(1)(c) of the Consolidation Act is different from concept of abatement in the Code of Civil Procedure and if concept of abatement under the Code of Civil Procedure is applied in the case of Consolidation proceeding it will do irreparable harm.

(3.) IT appears from the order dated 26.11.1996 passed in Civil Revision no. 1390/90 that the court has accepted the argument of the counsel for the Opposite party that order of abatement under the Consolidation proceeding is a decree and as such revision is not maintainable. Decree has been defined u/s 2(2) of the Code of Civil Procedure. The essential element of the decree is that there must be adjudication of the right of the parties with regard to all or any of the matter in controversy in the suit. The order of abatement u/s 4(1)(c) of the Consolidation Act is not a determination of right of the parties in the suit rather it is merely to ensure unhamperred adjudication of claims to land before the authorities under the Consolidation Act. The effect of such abatement is not permanent and it vanishes after denotification of the Consolidation scheme and suit revives and right of the parties is determined in the suit. Therefore, in any view of the matter the order of abatement cannot be taken as decree. A Division Bench of this Court in the case of Ravneshwar Thakur & ors. vs. Neeraj Kumar Thakur & ors., 1996 (1) P.L.J.R. 494 has held that where the appeal is against the decision of trial court on merit i.e. where the trial court has decided the dispute on merit or in other words determined the right of parties, rejection of memo of appeal would amount to decree and would be appeal -able. However, where trial court has disposed of the case on preliminary ground or on technical ground without deciding the dispute on merit in limine the rejection of memorandum will not amount to decree as there was no determination of right of the parties and as such order will be revisable. The order of abatement u/s 4(1)(c) of the Consolidation Act is not determination of the right of the parties and as such it is not decree as defined in the Code of Civil Procedure. Therefore, on consideration as discussed above it cannot be said that such order is appealable rather in such cases revision would lie.