Satish Chandra, J. - (1.) THE res pondents 3 to 5 filed objections before the Consolidation Officer. The petitioner contested them. The objections were fixed for hearing on 11-12-1968. On that day the hearing was adjourn ed to 23-12-1968. They were al lowed by the Consolidation Officer by an order of that date. Subsequently, on 4-1-1969 a notification under Section 52 of the U. P. Consolidation of Holdings Act was published. Thereafter, on Jan uary 15. 1969 the petitioner filed an ap plication for setting aside the ex parte order of 23-12-1968. He alleged that he was all along present on that day but he was told that the case would be heard on some other date of which notice will be given to him later. Upon hearing this he went away and subsequently he learnt that the objections had been de cided on that day. The restoration ap plication was dismissed by the Consoli dation Officer without giving any rea sons. The petitioner then filed a revi sion. The Deputy Director dismissed the revision on the view that by the Issuance of the notification under Sec tion 52 prior to the restoration applica tion the application was not competent. He relied on a Single Judge decision in Mohd. Saddiq v. Deputy Director of Consolidation. (1967 All WR (HC) 228). The revision was dismissed. Aggrieved, the petitioner filed a writ petition. At the hearing of the writ petition the at tention of the learned Single Judge was invited to another decision of this Court in Dilawar Singh v. Gram Samal 1972 All WR (HC) 557 = (AIR 1973 All 411). The learned Single Judge felt that there was divergence in the decisions and it was better that the matter be decided by a larger Bench. That is how this case has been placed before this Bench. 1-A. Section 52 of the Act pro vides : "Close of Consolidation Operations- (1) As soon as may be after fresh maps and records have been prepared under sub-section (1) of Section 27. the State Government shall issue a notification in the official Gazette that the consolida tion operations have been closed in the unit and village or villages forming part of the unit shall then cease to be under consolidation operations. Provided that the issue of the notifi cation under this section shall not affect the powers of the State Government to fix. distribute and recover the cost of operations under this Act. (2) Notwithstanding anything con tained in sub-section (1) any order pass ed by a Court of competent jurisdiction in cases of writs filed under the provi sions of the Constitution of India, or in oases or proceedings pending under this Act on the date of issue of the notifica tion under sub-section (1) shall be given effect to by such authorities as may be prescribed and the consolidation opera tions shall, for that purpose be deemed to have not been closed."
(2.) THE issuance of the Notifica tion does not, however affect the orders passed by the High Court or the Supreme Court under the provisions of the Constitution of India or in oases or proceedings pending under this Act on the date of issue of notification under sub-section (1) and orders passed will have to be given effect to notwithstand ing anything contained in the Notifica tion. In Dilawar Singh's case. 1972 All WR (HC) 557 = (AIR 1973 All 411) the Division Bench observed that the term "proceedings" in Section 52 (21 has been used in the comprehensive sense of pro ceedings commencing from the one which Is initiated before the Consolidation Offi cer and including that taken in the ap peal Court. It was held that an appeal does not initiate a fresh proceeding. On the institution of the appeal the pro ceedings, which had become dormant on the decision of the trial Court, revive and remain pending, the only difference being that they are now pending in a different Court, namely, the Court of ap peal. It was also held that the notifi cation under Section 52 (1) does not have the effect of destroying vested rights of the litigants. For instance if a litigant has a right of appeal against a particular order he can exercise it notwithstanding the publication of the notification under Section 52 (1) and the moment an appeal is filed the effect in law is that the original proceedings stand revived. In our opinion the principle' laid down in this case is applicable to an application for setting aside an ex parte order. Section 41 of the Consoli dation of Holdings Act makes the pro visions of Chapters IX and X of the U. P. Land Revenue Act applicable to all proceedings under the Consolidation of Holdings Act. Sections 200 and 201 of the U. P. Land Revenue Act are in Chapter IX. Section 200 provides that whenever any party to such proceeding neglects to attend on the day specified in the summons, or on any day to which the case may have been postponed, the Court may dismiss the case for default or may hear and determine it ex parte. Section 201 says that no appeal shall lie from an order passed under Section 200 ex parte or by default. That section provides for re-hearing on proof of good cause for non- appearance. The petitioner had made an application under this provision for the re-hearing of the case on showing good cause for non-appearance. Actually his case was that he was all along present but he was in formed that the case would be heard on some other date. The proceedings are thus for the re- hearing of the matter. The petitioner had a statutory right to make such an application. This right accrued to him on 23-12-1968 the date when the Consolidation Officer disposed of the objection. That right could not be extinguished by the issuance of the notification under Section 52 (1). The effect of the exercise of that right was to invoke the revival of the proceedings before the Consolidation Officer. In our opinion, such proceedings are on the same footing as an appeal because they have the effect of reviving the original proceedings.
(3.) WE have seen the decision of the learned Single Judge in Mohd. Saddiq v. Deputy Director, (1967 All WR (HC) 228). In that decision no rea sons have been given for the view that an application for setting aside the ex parte decree does not fall within the purview of Section 52 (2) as a proceed ing which involves or affects a revival of the original proceedings and from that point of view making the original proceeding pending within the meaning of Section 52 (2). In our opinion, this decision does not lay down the law cor rectly.;