- (1.) THIS petition has been filed for quashing the proceedings under Section 144, C.P.C. on the ground that a notification under Section. 4 of the U. P. Consolidation of Holdings Act has been issued in respect of the village in which the land in dispute lies.
(2.) LEARNED counsel has contended that after the trial court's decree it was put into execution and possession was obtained by the petitioner. Thereafter an appeal had been filed by the judgment-debtor. During the pendency of the ap peal consolidation proceedings commenc ed. The appeal and the suit accordingly abated under Section 5 of the Consolida tion of Holdings Act. The judgment-deb tors thereupon applied under Section 144, C.P.C. for restitution. The court below has directed the restitution. The peti tioner has now challenged that order through this petition. Once the suit has abated under law. The effect will be that everything done by the Court in that suit will have to be reversed and the parties will have to be put back to the same position in which they were on the date of the insti tution of the suit. The purpose of Sec tion 144, C.P.C. is exactly the same. Once the suit has abated no party can take ad vantage or enjoy the benefit of the de cree which has been set aside with the abatement of the suit. Proceedings under Section 144, C.P.C. follow as a necessary consequence to the abatement of the suit. The order passed by the court below does not thus suffer from any error of law.
(3.) LEARNED counsel contends that the amended Section 5 (2) of the U. P. Consolidation of Holdings Act refers to all proceedings and hence proceedings under Section 144. C.P.C. will also be governed by Section 5 (2) and because proceedings regarding this land are pend ing before the consolidation authorities, proceedings under Section 144, C.P.C. should also stand abated under Section 5 (2). The contention is that clause (b) of sub-section (2) of Section 5 should be deemed to refer to proceedings under Section 144, C.P.C. also and as such the proceedings for restitution should also be deemed abated under clause (a) of Sec tion 5 (2) of the Act. Section 5 (2) and (b) read as under : "(a) Every proceedings for the cor rection 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 adjudica tion 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 proceedings is pending stand abated. (b) Such abatement shall be without prejudice to the right of the per son affected to agitate the right or inte rest in dispute in the said suit or pro ceedings before the appropriate consoli dation authorities under and in accord ance with the provisions of this Act and the rules made thereunder." Clause (b) itself refers to clause fa) and no proceeding can abate unless it is a proceeding mentioned in clause (a). Pro ceedings under Section 144, C.P.C. in our opinion, are not such proceedings as are contemplated by Section 5 (2) of the U. P. Consolidation of Holdings Act. Under Section 144, C.P.C. the Court only undoes what it did on the basis of a decree which no longer remains in existence and this can be done only by the court which had executed the decree and not by consoli dation authorities.;