- (1.) Respondents, in the appeal herein, instituted a suit for partition in respect of the property in dispute. The suit was decreed by the trial court. The appellant filed an appeal against the judgment and decree of the trial court before the High court. While the appeal was pending before the High court, a notification under Section 3 (1 of the orissa Consolidation of Holdings Act, 1972 (the Act) was published thereby indicating the commencement of consolidation proceedings under the Act. The question before the High court was whether the suit, out of which the appeal before the High court had arisen, stood abated in terms of Section 4 (4 of the Act. The High court answered the question in the negativeand in favour of the respondents. This appeal by way of special leave is against the judgment of the High court.
(2.) The High court considered the question of abatement on the interpretation of Section 4 (4 of the Act and came to the conclusion that the abatement was not automatic. The High court further held that since the respondents had lost the opportunity of filing objections before the consolidation authorities in terms of Section 14 of the Act, it would be in the interest of justice to permit the suit to continue. The High court rejected the contention that the suit abated on the following reasoning: "Abatement under Section 4 (4 is not an automatic process. Such an abatement shall occur only on an order being passed in that behalf by the court before which such a suit or proceeding is pending. . During the pendency of the first appeal, the notification under Section 3 of the Consolidation Act bringing the area into consolidation operation was published. Since the preliminary decree was not going to be affected by the consolidation operation, he did not feel it necessary to ask for any partition under the Consolidation Act and by the time an application for abatement under Section 4 (4 of the Consolidation Act had been filed by the present appellant, the stage for objection under Section 9 (3 of the Consolidation Act had already expired. Therefore the present respondents could not have raised that objection at that stage because of the bar contained in Section 14 of the Consolidation Act. Therefore, the principles decided by this court reported in Somanath Bhataria v. Punananda Bhataria squarely applied to the facts of the case that there could not have been ground for the civil courts to pass order of abatement. In this view of the matter, the non-passing of the order by the Hon'ble Single Judge on the question of abatement under Section 4 (4 of the Act does not materially affect the present appellant as in any event the suit could not have abated because of the special facts and circumstances of the case. "
(3.) We have given our thoughtful consideration to the reasoning and the conclusions reached by the High court. We are of the view that the High court fell into patent error in interpreting the provisions of Section 4 (4 of the Act. Section 5 (2 of the U. P. Consolidation of Holdings Act, 1953, is in pari materia with Section 4 (4 of the Act. Both the S. are couched in similar words. This court in Ram Adhar Singh v. Ramroop Singh while considering the scope of Section 5 (2 of the U. P. Act held as under: "We have referred only to some of the salient provisions of the Act; and they will clearly show that the subject-matter of the dispute, between the parties in this litigation, are all matters falling for adjudication, within the purview of the authorities constituted under the Act. In fact, clause (b) , of Ss. (2 of Section 5 of the Act, as it now stands, also lays down that the abatement of the proceedings, under clause (a) , shall be without prejudice to the rights of persons affected, to agitate the right or interest in dispute in the said suits or proceedings, before the appropriate consolidation 295 authorities under the Act and in accordance with the provisions of the Act and the rules made thereunder. Having due regard to the nature of this litigation, and the provisions of the Act, we are satisfied that the amended Section 5 of the Act applies to these proceedings. If that is so, an order has to be passed that the suit, out of which these proceedings arise, stands abated. ";