Hari Swarup, J. - (1.) This is an application u/S. 5(2) of the UP Consolidation of Holdings Act for declaring the appeal and the suit as abated. Learned counsel for the respondents has not challenged the allegations made in the application and has conceded that the notification u/S. 4 of the Act has been issued and if the appeal can be deemed to be pending, it will stand abated u/S. 5 of the Act. His contention, however, is that the application is not maintainable as the appeal cannot yet be deemed to be pending in the High Court. The argument is that the appeal can be deemed to be pending only after it has been heard u/O. 41, R. 11 CPC. According to him admission of appeal u/R. 9 of O. 41 can be only after the Court does not dismiss the appeal u/R. 11, and issues notice to the respondent. This contention cannot be accepted.
(2.) R. 9 cannot come into operation after R. 11, but must operate prior to R. 11. The appeal has got to be admitted before it can be dealt with by the Court. R. 2 of Ch. IX of the Rules of Court provides that every appeal referred to in R. 1 shall be separately registered and numbered immediately after it is received. This rule gives effect to R. 9 of O. 41, CPC. Admission of the appeal is automatic and takes effect as soon as it is presented in accordance with the provisions of O. 41, R. 1, CPC to the Court or the officer appointed to receive it. It is only when the appeal is admitted that it is directed to be heard u/O. 41 R. 11, CPC. No appeal can be heard by the Court either before or after notice to the respondent unless it has been admitted for consideration and is pending disposal. Similar view was taken by this Court in the case of Saheb Singh v/s. State of UP (1969 ALJ 177). The present appeal must, therefore, be deemed to be pending in this Court for purposes of S. 5(2) of the UP Consolidation of Holdings Act even though it has not yet been heard u/O. 41 R. 11 CPC. As the appeal is pending, this application is maintainable and in view of the statement of learned counsel for the respondents on merits of the application, the application is allowed. The appeal and the suit giving rise to it are declared to have abated.;