Kaushal Kishore, J. - (1.) The following reference as formulated by the Member, incharge Meerut Division in Second Appeal No. 6 of 1979-80. Meerut was referred to the Full Bench of this Court for opinion : "Whether a second appeal arising out of a proceeding for preparation of final decree in a suit under Section 176 of the U.P.Z.A and L.R. Act is liable to be abated under Section 5(2) (a) of the U.P. C.H. Act along with the suit or only the second appeal along with the proceedings for the preparation for the final decree will abate."
(2.) The learned counsel for the appellant to substantiate his argument that on the publication of notification under Section 4 of the U.P. C.H. Act, not only the final decree but also that preliminary decree shall also abate, referred to the fallowing case laws : (1) A.I.R. 1980 Alld. 779 : That under the C.P.C. now in force suit does not terminate by the passing of the preliminary decree but continues till it is finally and completely disposed of by the passing of the final decree. 2. AIR 1948 P.C. 11 H.N. (C); A partition suit in which preliminary decree has been passed is still a pending suit and the rights of parties who are added after the preliminary decree have to be adjudicated at the time of final decree. 3. AIR 1972 Alld. 336 para 5 : Proceedings for the preparation of the final decree would be proceedings in the same suit. 4. AIR 1975 SC 1499 : By virtue of the provision of Section 5 (2) (a) of the U.P. C.H. Act, there is a statutory abatement of the suit and other proceedings pending. 5. AWC 1976, p. 591 and 592 : Where in a suit under Section 176 of the Z.A. Act, matter concerning final decree came before the Board of Revenue in revision and it abated the entire suit including the preliminary decree for partition as notification under Section 4 was issued in respect of the land in suit, it was held that so long as the order of the Board of Revenue passed under Section 5(2) of the C.H. Act stood the preliminary decree passed in suit shall be deemed to be wiped off the record, and suit from the stage of the plaint will be deemed to have abated. 6. AIR 1962 SC 214 : Suit in the context of Section II C.P.C. must be continued literally and it denotes the whole of the suit and not a part of it or a material issue arising in it. 7. AIR 1981 SC 1450 : Where a land dispute is pending in second appeal and it is brought under consolidation scheme by notification under Section 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act of 1956, second appeal as also the orders of the lower court shall abate.
(3.) On the other hand, learned counsel for the respondent argued that as provided in Section 97 C.P.C., where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. He cited the view of the Supreme Court reported in AIR 1963 SC 992, that preliminary decree in a partition suit is final decision. Reference was made to AWC 1971 p. 714 in which the High Court made the following observations : "U.P. Consolidation of Holdings Act, 1974, Section 5 Abatement of suit. Suit for partition under Section 4V, U.P. Tenancy Act-Preliminary decree passed by Assistant Collector confirmed by Board of Revenue in second appeal-No further appeal filed to Supreme Court nor was the judgment of the Board of Revenue challenged in writ petition-Proceedings for preparation of final decree continued and was kept hanging for a long time due to certain objections by judgment debtor-Second appeal arising out of proceedings for preparation of final decree was pending when the village was brought under consolidation operation-Not open to consolidation authorities to reopen the matter as the same became final by passing of preliminary decree-No abatement of proceedings - C.P.C. Section 97." Similarly, the view of the Allahabad High Court reported in RD 1974 p. 379 in C.R. No. 209 of 1966 decided on July 15, 1974 Satish Kumar v. Lalta Tewari, 1983 R.R. (E) 185 was quoted, which runs as under : "Although a case may not terminate unless final decree was passed, yet there may be final to the various stages of that case and in these proceedings there my be a stage where the parties have already obtained a declaration in respect of their rights or interests in any land which is the subject of consolidation proceedings and if that declaration has become final and is no longer pending for the finality, the declaration of rights so obtained in a preliminary decree cannot be affected by a notification under the Consolidation of Holdings Act.";