K.N. Seth, J. - (1.) THIS is an application on behalf of Plaintiff Respondent No. 1 praying that the appeal and the proceedings from which the appeal arises be abated Under Section 5 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act).
(2.) MUKTESHWAR Pandey Respondent No. 1 had filed a suit for specific performance of a contract of sale against the Defendants. That suit was decreed by the lower appellate court by an order dated 10 -12 -1966 and the Defendants were directed to execute the sale deed and to deliver possession to the Plaintiff. A second appeal by the Defendants was dismissed by this Court Under Order 41, Rule 11 Code of Civil Procedure. The decree was put in execution and the Defendants were directed to execute a sale deed in favour of the Plaintiff decree -holder within one month and to deliver possession of the land in dispute. On the failure of the Defendants to execute the sale deed, the court executed the sale deed in favour of the Plaintiff and also delivered possession of the land to him. During the aforesaid execution proceedings, Gaya Koeri, one of the Defendants, filed an objection Under Section 47 of the GPC on the ground that as he was not directed to execute the sale deed and a sale deed already stood in his favour therefore the decree could not be executed against him. The execution court rejected the objection and his appeal also met the same face. The matter is now pending in this Court as Ex. S.A. No. 1224 of 1969. The present Appellants moved an application Under Order 41, Rule 21 and Section 151 Code of Civil Procedure before the learned Civil Judge alleging that they had no knowledge of the appeal and therefore, the ex -parte decree dated 10 -12 -1966 be set aside and they be heard on merits. The learned Civil Judge dismissed the application by his order dated January 29, 1970. The present appeal is directed against the aforesaid order of the learned Civil Judge. In the present application it is alleged that under a notification published in the UP Gazette dated June 27, 1969 the village where the property in dispute is situate, has come under consolidation proceedings and therefore, the appeal and the proceedings from which the appeal arises be abated Under Section 5 of the Act. It is obvious from the facts mentioned above that the suit was decreed by the learned Civil Judge on December 10, 1966 and that decree was confirmed when the second appeal filed by the Defendants was dismissed by this Court. Thereafter the decree was put into execution and a sale deed was executed in favour of the Plaintiff by the court when the Defendants failed to execute the sale deed within the time allowed by the court. The Plaintiff was also put in possession of the property when the objection filed by Gaya Koeri Under Section 47 GPC was also dismissed. All this had happened much before the village in question came under consolidation proceedings. Section 5(2)(a) of the Act reads as follows: (a) 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 regard 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. Provided that no such order shall be passed without giving to the parties notice by post or in any other manner and after giving them an opportunity of being heard: Provided further that on the issue of a notification Under Sub -section (1) of Section 6 in respect of the said area or part thereof, every such order in relation to the land lying in such area or part, as the case may be, shall stand vacated. It is obvious that proceedings for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in any area pending before any court whether of the first instance or of appeal, reference or revision shall stand abated. It is further clear that a suit can be abated if the consolidation authorities have jurisdiction to go into the question involved. This means that if a matter can be gone into in consolidation proceedings, a suit in respect of such a matter must stand abated Under Section 5 of the Act. The object of Section 5(2) of the Act appears to be to abate suits pending in civil and revenue courts in respect of matters which could be decided by the consolidation authorities. If, however, the matter is such that the consolidation authorities are incompetent to decide, such a matter could not be abated.
(3.) THE present appeal arises out of an application made Under Order 41, Rule 21 and Section 151 Code of Civil Procedure for setting aside the judgment and decree dated December 10, 1986 and for rehearing the appeal. The suit has been finally disposed of and the rights of the parties determined much before the village came under consolidation proceedings. In fact the decree itself has been executed and the Plaintiff has been put in possession. The Defendants want the appeal to be reheard by the lower appellate court. It is that court alone which has jurisdiction to adjudicate upon the controversy between the parties. The present proceedings is not a suit or proceeding in respect of declaration of rights or interest in any land. The consolidation authorities are not at all competent to deal with the present matter in controversy between the parties. The rights, which have finally vested in the Plaintiff under the decree of a competent civil court, cannot now be taken away. The Act does not provide any machinery by which the present controversy can be decided under it. In fact the Act is not intended to be used for re -adjudication of rights already settled by a court. The only court which is competent to deal with the present matter is the court of the Civil Judge which decided the appeal. In my opinion the present application is misconceived. The appeal and the proceedings from which the present appeal has arisen cannot be abated Under Section 5 of the Act. The application is accordingly dismissed.;