PASHUPATI NATH SINGH Vs. JAIRAM SINGH

JUDGEMENT

(1.) These two civil revision applications on reference have been heard together and are being decided by a common judgement.

(2.) The question for consideration is as to whether an execution proceeding abates under S.4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 on the publication of a notification under S.3 of the said Act. S.4 (c)of the Act reads as under :- 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 provision of this Act, from the date specified in the notification till the close of the consolidation operations, ensue in the area to which the notification relates, namely (c) 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 regards 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 :"

(3.) This Act provides for the consolidation of holdings and prevention of fragmentation of land. The question regarding declaration of rights or interests of the parties in any land can be decided by the consolidation authorities in accordance with the Consolidation Act. On the other hand, an executing court cannot go behind the decree which has become final. It is well established that the executing court has to execute the decree as it is. It is also established that objections of the nature that may be determined in an execution proceeding cannot be adjudicated upon by the consolidation authorities. The scheme of consolidation has to be consistent with a decree which has become final. S.4(c) of the Act only comes in at the stage when a decree has not become final. When the matter is sub judice either in suit or in appeal or in reference or revision, the court or authority before whom such a suit or proceeding is pending shall pass an order abating the suit or the proceeding. As stated earlier, when a decree has become final and the matter is pending before an executing court, there is nothing to be considered in respect of any declaration of right or interest or for the declaration or adjudication of any other right. Considering all these aspects a Division Bench of this Court in the case of Bikarama Dubey. v. Hrishikesh Singh, reported in 1979 BBCJ 726 held that provisions of S.4(b) and (c) are not applicable to execution proceedings and the execution cases are not barred either before or after the issuance of a notification under S.3(1) of the Act where the right or interest in land could not be adjudicated upon or dealt with under the Consolidation Act. The said view has been approved by a Full Bench of this Court in the case of Hari Mohan Thakur v. Mahendra Narain Chand in Civil Rev. No. 97 of 1980 decided on 11th Sept. 1986*. The question before the Full Bench was whether in a suit for partition, the proceeding subsequent to the preliminary decree (which has achieved finality) in pursuance thereof for the preparation of the final decree would be hit and consequently abate under S.4(c) of the Act. The answer was given in the negative.