NAGESHWARI DEVI Vs. RANPARI DEVI

JUDGEMENT

(1.) In a civil revision petition the plaintiffs, petitioners have challenged the validity of the order dated the 4th February, 1977 passed by the executing court.

(2.) By this order the court below held at the stage of preparation of the final decree that the suit abated. In my opinion, the court below erred in exercising the jurisdiction vested in it by law. Under section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act) a suit abates and not an execution proceeding. The suit begins with the presentation of the plaint under section 26 of the Code of Civil Procedure and it comes to an end after passing of the decree. This matter arises out of a partition suit. The suit, in respect of declaration of right came to an end after the passing of the preliminary decree. The final decree is being prepared for implementing the decision made in the preliminary decree. In my opinion, no suit is pending after the preliminary decree is passed, as such, the case will not come within the purview of Section 4(c) of the Consolidation of Holdings and Prevention of Fragmentation Act. If the case does not come within the purview of Section 4(c) of the Act, the court below erred in law in holding that the suit is still pending on the date of the preparation of the final decree. If no suit was pending at the date of the preparation of the final decree, the such petition under section 4(c) of the Act is not maintainable in law.

(3.) In the result, the impugned order dated the 4th February, 1977, passed by the court below is set aside and the court below is directed to finish the preparation of the final decree as early as possible. This applica tion is accordingly allowed. The parties shall bear their own costs.