T.S.Misra, J. - (1.) THIS is an applica tion for abatement of the appeal and the suit which has given rise to the appeal. The material facts for the purposes of this appli cation may be briefly stated. The plaintiff filed a suit for cancellation of a sale-deed dated 15th June, 1964, executed by him and Ali Kabir in favour of the defendant in res pect of the property detailed at the foot of the plaint so far as it pertained to his share therein. The Trial Court dismissed the suit, but in appeal, it was decreed and the sale-deed in question was cancelled to the extent of the plaintiff's share in the property, in dis pute. The decision of the appellate court below was given on 18th May, 1972. Against that decision, the defendant filed a second appeal in this Court on 11th July 1972 However, before the second appeal was filed a notification under Section 4 of the U. P. Consolidation of Holdings Act was published on 21st May. 1972, in respect of the village where the land in dispute is situated. The appellant, therefore, filed an application that the suit and the appeal be ordered to have abated under Section 5 of the said Act. The plaintiff-respondent in his counter-affi davit has admitted the publication of a noti fication under Section 4 of the said Act, under which the village where the land in question is situated, has been brought under the consolidation operations. It was, how ever, Urged on behalf of the respondent that as the said notification had been issued be fore the filing of the second appeal, the Court had no jurisdiction to entertain the appeal and the appeal would, therefore, not be deemed to be pending. Hence no order for abatement can be passed under sub-sec tion (2) of Section 5 of the said Act inas much as an order for abatement can be passed only when a suit, appeal or revision is pending in a competent court. This con tention is sought to be based on the provi sions of Sections 49 and 5 of the said Act.
(2.) TO appreciate the argument, I may begin by quoting Section 49 of the said Act. It is as follows:- "49. Bar to Civil Court Jurisdiction - Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure-holders in respect of land lying in an area, for which a notification has been issued under sub-section (2) of Section 4, or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no Civil or Revenue Court shall entertain any suit or proceeding with res pect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act." Section 49 provides that the declaration and adjudication of rights of tenure-holders in respect of land lying in an area for which a notification has been issued under .Sec tion 4 shall be done in accordance with the provisions of the Act and debars a Civil or Revenue Court to entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under the Act. In other words, the provisions of this section require that no suit or proceeding shall be entertained by a Civil or a Revenue Court with respect to lights in a land which is situated in a village which had been brought under consolidation operations, for which a proceeding could or ought to have been taken under the said Act. A question thus arise what is the meaning of the word 'entertained' in this con text. Does it mean that no appeal shall be 'received' or filed' or does it mean that no appeal shall be admitted or heard and dis posed of? According to the learned counsel for the respondent the word 'entertained" connotes that no appeal shall be 'received' or filed'. In my view this would not be a correct interpretation of that word. If the legislature intended that the word filed' or received' was to be used it could have easily used that word. In fact in some of the sta tutes such expressions have been used. For instance, under Rule 1 of Order 41 of the Code of Civil Procedure it is stated that a memorandum shall not be 'presented' unless it is accompanied by a copy of the decree appealed from and of the judgment on which it is founded. Similarly in Section 6 of the Court Fees Act the words used are filed or 'shall be received'. So also in Section 17 of the Provincial Small Cause Courts Act the expression used is 'at the time of present ing his application. Similarly in Section 49 of the Registration Act the expression used is 'received as evidence. The newly substi tuted proviso to Order 21, Rule 90 of the Code of Civil Procedure also, inter alia, pro vides that no application to set aside a sale shall be entertained unless the applicant de posits etc. etc. ' Section 49 of the U. P, Consolidation of Holdings Act, as it originally stood, required that no person shall "institute" any suit or other proceeding in any Civil Court with respect to any matter arising out of consolidation proceedings or with respect to any, other matter in regard to which a suit or application could be 'filed' under the pro visions of this Act. This Section 49 was, however substituted by the present section by the U. P. Act No. XXXVIH of 1958 which, as indicated heretofore, provides that no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other mat ters for which a proceeding could or ought to have been taken under this Act. It would thus appear that the Legislature was not at a loss for words if it wanted to express in the manner, as is contended by the learned counsel for the respondent and it must be accepted that it has used the word 'entertain ed' advisedly.
(3.) THE meaning of the word 'enter tain was examined by this Court in a num ber of cases. See Bawan Ram v. Kunj Behari Lal, AIR 1962 All 42; DhoonTChand Jain v. Chaman Lal Gupta, AIR 1962 All 543; Kundan Lal v. Jagan Nath Sharma. AIR 1962 All 547; Haji Rahim Bux and Sons v. Samiullah and Sons, AIR 1963 All 320 and Smt. Jaggi v. Ram Autar, 1965 All LJ 1135. In the case of Dhoom Chand Jain (supra) while dealing with the provisions of Order 21, Rule 90, Civil Procedure Code it Was ob served:- "The dictionary meaning of the word 'entertained' is to deal with, to admit to con sideration. In its application to clause (a) the word bears the meaning admitting to con sideration...............Accordingly while the Court cannot refuse to take an application which is not backed by deposit or security, it cannot judicially consider it." Again the word 'entertain' as used in the proviso to Order 21, Rule 90, Civil Pro cedure Code came to be considered by a Division Bench of this Court in Kundan Lai's case (supra). In para 5 of the judg ment it was observed:- "The expression 'entertain in our opin ion does not mean the same thing as the filing of the application or the admission of the application by the Court. The dic tionary meaning of the word 'entertain' is to deal with or to take a matter into conside ration. A court hearing an application under Rule 90 of Order XXI, Civil Procedure Code can only be said to entertain the application when it is actually disposing of the appli cation on the merits. It, therefore, follows that the mere filing of the application by the judgment- debtor would not be its enter tainment by the court and, therefore, what is contemplated by the proviso to Rule 90 of Order XXI is that conditions which are pres cribed by the proviso have to be complied with by the judgment-debtor before the court comes to dispose of the application on the merits." In para 7 of the judgment it was observed: "The use of the word 'entertain' in the proviso to Rule 90 of Order XXI denotes a point of time at which an application to set aside the sale is heard by the Court." The ruling reported in Bawan Ram's case (supra) was overruled. The word 'entertain' again came up for consideration in Haji Rahim Bux & Sons' case (supra). While dealing with the provisions of Order XXI, Rule 90, Civil Pro cedure Code it was held that the word 'en tertain' in the proviso did not mean receive or accept but 'proceed to consider on me rits or 'adjudicate upon'. Similar interpre tation was given to the word 'entertain' in the case of Smt Jaggi (supra).;