# Parag Memorial Educational Instit v. Gram Panchayat Sarehri & Ors

- **Citation:** (2024) 3 ILRA 1451
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-13
- **Case number:** Matter Under Article 227 No. 287 of 2006
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/parag-memorial-educational-instit-v-gram-panchayat-sarehri-ors-51607
- **Pages:** 10

## Headnote

1452 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C.,
R.N.
Gupta,
Shiv
Kumar,
Suresh
Chandrashukla

Civil Law - U.P. Consolidation of Holdings
Act, 1953 - Section 52 - Appeal -
Maintainability of - Petitioner contended
that after publication of notification under
Section
52
of
U.P.
Consolidation
of
Holdings Act, 1953, appellate authority
namely
Settlement
Officer
of
Consolidation was not empowered to
entertain or decide appeal preferred u/s
11 of Act of 1953 - Considering admitted
fact that appeal was filed after publication
under Section 52 of Act, 1953, and no
authority was cited to controvert law
settled by Co-ordinate Bench, thus finds
no
merit
in
petition,
accordingly
dismissed. (Para 7, 12)

Writ petition dismissed. (E-13)

List of Cases cited:

## Text

3 All. Parag Memorial Educational Instit. Vs. Gram Panchayat Sarehri & Ors.
1451
recorded by the Trial Court and the
Revisional Court.

64. Moreover, there is another flaw in
the arguments of the learned counsel and
that is the application under Section 5 of
the Limitation Act, 1963 was rejected by
the Trial Court by holding that the
application under Order 9 Rule 13 C.P.C.
were within 30 days of the knowledge of
the decree, hence within time, this order
was known to the plaintiffs but they never
assailed the same before the Revisional
Court nor before this Court.

65. Merely to state that since in the
order itself it was written that the
application
under
Section
5
of
the
Limitation Act is rejected and consequently
the application under Order 9 rule 13
C.P.C. would have to be rejected, is
apparently an erroneous submission, in the
facts of the instant case. May be the
language used by the Trial Court while
disposing of the application under Section
5 of the Limitation Act, 1963 may not have
been very happily worded but the fact
remains that in the entire text of the said
order dated 26.10.2023, it has been clearly
explained by the Trial Court that the
application under Order 9 Rule 13 C.P.C. is
to be treated within time and for the said
reason, the application under Section 5 of
the Limitation Act, 1963 was rejected,
however, it did not mean nor it is evident
from the perusal of the order dated
26.10.2023 that the application under
Section 5 of the Limitation Act, 1963 was
rejected on merit i.e. to say that the
defendants were unable to explain the delay
or they could not establish the sufficient
cause as required, hence, the submission to
the contrary made by learned counsel for
the petitioners does not impress this Court.

66. For all the aforesaid reasons, this
Court is satisfied that there is no error in
the orders impugned which may persuade
this Court to entertain the aforesaid
petitions which are devoid of merits and all
the petitions deserve to be dismissed.

67. Since the matter of R.S. No. 1146
of 2018 is to be contested on merits,
accordingly, this Court provides that the
Trial Court seized with the Regular Suit
No. 1146 of 2018 shall after affording full
opportunity of hearing to the parties but
without
granting
any
unnecessary
adjournments
shall
expedite
the
proceedings to decide the suit on its own
merits as expeditiously as possible.

68. The writ petitions bearing W.P.
No. 96 (A-227) of 2024, W.P. No. 91 (A227) of 2024, W.P. No. 342 (A-227) of
2024 and W.P. No. 347 (A-227) of 2024
are dismissed. Costs are made easy.
----------
(2024) 3 ILRA 1451
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.03.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Matter Under Article 227 No. 287 of 2006

Parag Memorial Educational Instit.
 ...Petitioner
Versus
Gram Panchayat Sarehri & Ors.
 ...Respondents

Counsel for the Petitioner:
Shafiq Mirza, Chandra Has Misra, Manzar Ali
Khan

Counsel for the Respondents:
1452 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C.,
R.N.
Gupta,
Shiv
Kumar,
Suresh
Chandrashukla

Civil Law - U.P. Consolidation of Holdings
Act, 1953 - Section 52 - Appeal -
Maintainability of - Petitioner contended
that after publication of notification under
Section
52
of
U.P.
Consolidation
of
Holdings Act, 1953, appellate authority
namely
Settlement
Officer
of
Consolidation was not empowered to
entertain or decide appeal preferred u/s
11 of Act of 1953 - Considering admitted
fact that appeal was filed after publication
under Section 52 of Act, 1953, and no
authority was cited to controvert law
settled by Co-ordinate Bench, thus finds
no
merit
in
petition,
accordingly
dismissed. (Para 7, 12)

Writ petition dismissed. (E-13)

List of Cases cited:

1.
Kapil
Dev
Vs
Deputy
Director
of
Consolidation, Faizabad & ors..), 1996 (14) LCD
550, Writ Petition No. 203 (Cons.) of 1995

2.
Hari
Ram
Vs
Deputy
Director
of
Consolidation, Azamagarh & ors..1989 RD 281

3. Siddh Narayan Vs The Deputy Director of
Consolidation & ors..; MANU/UP/1284/2007,
(Paras 3 to 20)

4. Nanhki Vs Deputy Director of Consolidation,
Pratapgarh & ors.1995 Part 1 Volume 13 LCD 1:
1994 RD 264

5. Chhotey Lal & ors..Vs Up-Zila Adhikari/SubDivisional
Magistrate
&
ors..;
MANU/UP/1187/2004

6. Dahari Lal & ors..Vs D.D.c. & ors..,
MANU/UP/2756/2010: 2010(6) ADJ 705, (Paras
18 to 23)

7. Sudarshan & ors.Vs Chief Revenue Officer &
ors.., MANU/UP/1960/2021: 2022 (154) RD 43,
(Paras 11 to 13)

(Delivered by Hon'ble Saurabh Lavania, J.)

C.M.Application
Nos.
IA/8/2023,
IA/9/2023 and IA/10/2023 (Application(s)
for Condonation of Delay, Setting Aside
Abatement and Substitution)

1. Heard.

2. Considering the issue involved in
the present petition as also the undisputed
facts that private respondent Nos. 3 to 5
were the Members of Chakbandi, this Court
finds no force in the application(s), under
consideration, as such, the same are hereby
rejected.

Order on Petition

3. Heard Mohhd. Arif Khan, learned
Senior Advocate assisted by Mr. Shadab
Khan, Advocate as also Mr. Akbar Ali
Khan, learned counsel for the petitioner, Sri
Hemant Kumar Pandey, learned counsel for
the State as also Sri Shiv Kumar, Advocate,
who
preferred
the
application
for
impleadment, to which, the objection has
been filed before this Court and the same is
taken on record.

4. By means of the present petition,
petitioner has sought the following main
relief:-

"(a) To issue a writ, order or
direction in the nature of prohibition
prohibiting the opp. party No.6 to proceed
with appeal No. 1734/1067/2003 under
Section 11 of the U.P. Consolidation of
Holdings Act, (Shyama Kumari and Others
vs.
Parag
Memorial
Educational
Institution)."

5. The aforesaid main prayer has been
sought on the following two grounds:-
3 All. Parag Memorial Educational Instit. Vs. Gram Panchayat Sarehri & Ors.
1453

"(i) Because the order passed by
the
Consolidation
Officer
was
not
challenged and had become final between
the parties. The consolidation operation
came to an end after the issue of
notification Under Section 52 of the
U.P.Consolidation of Holdings Act, on
9.6.2001. No appeal could therefore be
legally filed or entertained as nothing was
pending
on
the
date
of
aforesaid
notification.

(ii) Because opposite party no. 6
patently lacks jurisdiction to entertain and
adjudicate upon the appeal."

6. For seeking the prayer sought,
based upon the above quoted grounds, Mr.
Khan, learned Senior Advocate, placed
reliance on the judgment passed in Writ
Petition No. 203 (Cons.) of 1995 (Kapil
Dev vs. Deputy Director of Consolidation,
Faizabad and Others), 1996 (14) LCD
550, and the judgment passed in the case of
Hari
Ram
vs.
Deputy
Director
of
Consolidation, Azamagarh & Ors. 1989
RD 281.

7. Learned Senior Advocate Mr.
Khan, based upon the judgments, referred
above, submitted that after publication of
notification under Section 52 of the U.P.
Consolidation of Holdings Act, 1953 (in
short "Act of 1953"), the appellate
authority namely Settlement Officer of
Consolidation, Hardoi, was not empowered
to entertain or decide the appeal preferred
under Section 11 of the Act of 1953, as
such, interference of this Court is required
in the matter.

8. Opposing the present petition,
learned counsels for the side opposite
namely Sri Hemant Kumar Pandey as also
Sri Shiv Kumar, based upon the judgment
passed in the case of Siddh Narayan vs.
The Deputy Director of Consolidation and
Ors.;
MANU/UP/1284/2007,
submitted
that the Co-ordinate Bench of this Court,
after taking note of earlier pronouncements
on the issue including the judgment passed
by the Division Bench of this Court in the
case of Hari Ram vs. Deputy Director of
Consolidation, Azamagarh & Ors.; 1989
RD 281, as also the judgment passed in the
case of Nanhki vs. Deputy Director of
Consolidation, Pratapgarh and Ors. 1995
Part 1 Volume 13 LCD 1: 1994 RD 264,
the basis of the judgment passed in the case
of Kapil Dev (Supra), held that the appeal
would
be
maintainable
even
after
publication of notification under Section 52
of the Act of 1953. The relevant paras of
the judgment passed in the case of Siddh
Narayan
(Supra)
are
extracted
hereinunder:-

"3. It has been urged by learned
counsel for the petitioner that appeal filed
by Gaon Sabha after de-notification of
consolidation operation under Section 52
of the Act was not at all maintainable and
his preliminary objection has wrongly been
overruled. Reliance in support of the
contention has been placed on the
decisions of learned single Judge of this
Court in the case of Raj Bahadur Singh v.
Deputy Director of Consolidation, Hardoi,
1974 R.D. (Suppl.) 181 and Nanhki v.
Deputy
Director
of
Consolidation,
Pratapgarh, 1994 R.D. 264 and a Division
Bench of this Court in the case of Hari Ram
v. Deputy Director of Consolidation,
Azamgarh, 1989 R.D. 281. In so far as the
cases of Hari Ram (supra) and Nanhki
(supra) are concerned, the same have no
application to the facts and circumstances
of the present case inasmuch as in the said
two cases the question before the Court
was
whether
Deputy
Director
of
Consolidation could have entertained and
1454 INDIAN LAW REPORTS ALLAHABAD SERIES
decided reference proceedings in exercise
of powers conferred by Section 48(3) of the
Act even after issuance of the notification
under Section 52 of the Act.

4. The question for consideration
in this case is whether an appeal against
the order of the Consolidation Officer
could be filed, entertained and proceeded
with even after notification under Section
52 of the Act has been issued.

5. It is well settled that institution
of a suit or proceedings carries with it the
implication that all rights of Appeal then in
force remain preserved with the parties
thereto till the proceedings are finally
decided and that right of appeal is a vested
right which accrues to the litigant from the
date the lis commenced. Reference may be
made to the following observation of the
Hon'ble Supreme Court in the case of
Garikapati v. Subbaih Choudhary, AIR
1957 S.C. 540.

"Legal persuit of a remedy, suit
appeal and second appeal are really but
steps in a series of proceedings all
connected by an intrinsic entity and are to
be regarded as one legal proceeding and
that the right of Appeal was not a mere
matter of procedure but was a substantive
right."

6. Thus, it is clear that right of a
litigant to take proceedings to a higher
Court, in case of an adverse order, comes
into existence the moment proceeding is
initiated and continues till the lis continues.
The right is to be governed by the law
prevailing at the time of institution of the
suit, proceedings or appeal and not by the
law that prevails at the time of decision or
that of the filing of the appeal unless it was
expressly or by necessary implication so
provided.

7. Section 11 of the Act providing
for appeals reads as under:

"11. Appeals:- (1) Any party to
the
proceedings
under
Section
9-A
aggrieved by an order of the Assistant
Consolidation Officer or the Consolidation
Officer under that Section, may within 21
days of the date of the order, file an appeal
before
the
Settlement
Officer,
Consolidation, who shall, after affording
opportunity of being heard to the parties
concerned, give his decision thereon which,
except as otherwise provided by or under
this Act, shall be final and not be
questioned in any Court of law.

(2)
The
Settlement
Officer,
Consolidation, hearing an appeal under
sub-section (1) shall be deemed to be a
court of competent jurisdiction, anything to
the contrary contained in any law for the
time being in force notwithstanding."

8. Section 52(1) and (2) of the Act
around which the entire controversy
revolves reads as under-.

"52.
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
consolidation operation 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
notification under this section shall not
affect the powers of the State Government
to fix, distribute and recover the cost of
operations under this Act.

(1-A) The notification issued
under sub-section (1) shall be published
also
in
a
daily
newspaper
having
circulation in the area and in such other
manner as may be considered proper.

(2)
Notwithstanding
anything
contained in sub-section (1), any order
passed by a Court of competent jurisdiction
3 All. Parag Memorial Educational Instit. Vs. Gram Panchayat Sarehri & Ors.
1455
in cases of writs filed under the provisions
of the Constitution of India, or in cases of
proceedings pending under this Act on the
date of issue of the notification under subsection (1), shall be given effect to by such
authorities as may be prescribed and the
consolidation operation shall, for that
purpose, be deemed to have not been
closed.

(3)........................."

9. From the aforesaid it would be
seen that sub-section (2) of Section 52
which has been added by amending Act No.
VIII of 1963 is a deeming clause which
clearly provides that for the purpose of
giving effect to the orders which may be
passed by a Court of competent jurisdiction
either in cases of writs or proceedings
pending under the Act on the date of
issuance of notification under Section 52,
Consolidation operation shall not be
deemed to have been closed.

10. There is nothing either in
Section 11 or in Section 52 of the Act which
either
expressly
or
by
necessary
implication takes away the right of appeal.
In view of the deeming clause contained in
Section 52(2) of the Act, in cases where the
proceedings under the Act are pending on
the date of issuance of notification under
sub section (1), the consolidation operation
shall not be treated to be closed meaning
thereby in such cases the provisions of the
Act shall continue to remain in force as if
notification under Section 52(1) notifying
the close of consolidation operation has not
been issued.

11. In the case in hand, against
the order passed by the Consolidation
Officer the contesting respondents had a
right to approach the Settlement Officer
Consolidation in appeal. However, before
their rights to approach the appellate
Court came to an end notification under
Section 52(1) of the Act was issued.
However, in view of the deeming clause
under Section 52(2) notification issued
under section 52(1) of the Act will have not
have the effect of destroying the right of
appeal which came to be vested in the
constesting respondents inasmuch as the
proceedings initiated under Section 9 of the
Act had not been finally decided when
notification under section 52(1) of the Act
was issued.

12. The question whether an
appeal or revision could be filed even after
issuance of notification under Section 52(1)
of the Act came up for consideration before
a learned single Judge in the case of Gopi
Singh v. Deputy Director of Consolidation,
(1967) AWR 264. Learned single Judge
while holding that the appeal would be
maintainable observed as under;

"The term 'proceedings' in S.
52(2) has, in my opinion, been used in that
comprehensive sense to include the entire
series of proceedings commencing from the
one
which
is
initiated
before
the
Consolidation Officer and including that
taken in the appeal court. When an appeal
is
instituted
the
proceeding
which
commenced in the trial Court continues.
The appeal does not initiate afresh
proceeding. On the institution of the appeal
the proceedings which have become
dormant on the decision by the trial court,
revive and remain pending. The only
difference being that it is now pending in
the different court, namely the Court of
appeal."

It was further observed;

"The word 'cases' in the phrase
'cases of writs filed under the Constitution',
in sub-Sec. (2) will include orders passed
by higher courts of appeal including the
Supreme Court. Thus, sub-Sec. (2) is
designed to preserve and make effective
orders passed by any one or more of the
hierarchy of Courts established under the
1456 INDIAN LAW REPORTS ALLAHABAD SERIES
Act, irrespective of whether the proceeding
was pending in any particular court or in
any Court subordinate thereto, on the date
of issue of the notification in sub-Sec. (1)"

13. The aforesaid view of the
learned single Judge was approved by a
Division Bench in the case of Dilawar
Singh v. Gram Samaj, 1972 AWR 557. The
same was the view of another Division
Bench in the case of Ram Bahadur v.
Deputy Director of Consolidation, 1973
AWR 207.

14. The same principles have
been applied with equal force in case of a
revision before the Deputy Director of
Consolidation under Section 48 of the Act
by the Division Bench in the case of
Dilawar Singh (supra) wherein it was
observed as under;

"The principle of a vested right of
a litigant to take a proceeding to the
superior Court by an appeal would be
equally applicable in case of a revision. It
is true that a revision is a power conferred
on a court or authority to be exercised at
its discretion but it does not mean that the
litigant does not possess the right to
approach the superior court through a
petition for revision. The only basic
difference between an appeal and a
revision is that in case of an appeal the
appellant is entitled to a relief if he
succeeds in establishing that the order of
the subordinate Court or authority was
unsound contrary to law.

15. In case of a revision that
court has discretion to refuse the relief if,
for example, in its opinion substantial
justice had been done between the parties
although the order sought to be revised
suffered from infirmitites which could
justify an interference by the revising
court........ If under a statute a party has a
right to approach the superior Court with a
prayer
to
revise the
order
of the
subordinate Court, the proceeding can be
said to be Pending till the right to exercise
the right of approaching the superior Court
subsists in the applicant and so long that
right subsists it cannot be said that the
proceedings had finally come to an end.
The right to approach the superior Court
through an appeal or a revision can be
exercised only after an adverse judgment
order is passed against the party. Till then
the right only remains dormant and when
that right is exercised, the original
proceedings become pending."

16. Even in cases where the
limitation of filing recall application or
appeal or revision has run out prior to date
of notification under section 52 of the Act,
aggrieved person can file restoration
application, appeal or revision as held by
the Division Bench in the case of Ram
Bahadur (supra). The Bench was of the
view that proceedings for recall are on the
same footing as an appeal because they
have the effect of reviving the original
proceedings. The same view was again
reaffirmed by another Division Bench in
the case of Jiwa Ram v. Deputy Director of
Consolidation, 1974 (Suppl.) R.D. 40.
Reference may also be made to the
following decisions of the learned single
judge taking the same view; Jhagru v.
Deputy Director of Consolidation Basti,
1989 RD 126, Shyam Narain Rai v. Deputy
Director of Consolidation Ballia, 1981 RD
307, Ram Rati v. Deputy Director of
Consolidation, 1998 (2) AWC 973 : (1998
All LJ 1740) and Tara Chand v. Deputy
Director of Consolidation Ballia, 2004 (96)
RD 193).

17. In view of the aforesaid
discussions and the law laid down by the
Division Bench pronouncements in the case
of Dilawar Singh (supra), Ram Bahadur
(supra), Jiwa Ram (supra), the contrary
decision of a learned single Judge in the
3 All. Parag Memorial Educational Instit. Vs. Gram Panchayat Sarehri & Ors.
1457
case of Raj Bahadur Singh v. Deputy
Director of Consolidation, Hardoi (supra)
relied upon by the learned counsel for the
petitioner cannot be accepted as laying
down correct law and has no binding or
even persuasive value.

18. In view of above, there is no
illegality in the impugned orders passed by
Settlement
Officer
Consolidation
overruling the preliminary objection raised
by the petitioner that the appeal would not
be
maintainable
after
issuance
of
notification under Section 52(1) of the Act
as well as the revisional order passed by
Deputy Director of Consolidation.

19. In the result, the writ petition
fails and is dismissed.

20. Petition Dismissed."

9. It is also submitted by the learned
counsel for the State that in the facts of the
case particularly the fact that petitioner's
Institution was situated on the Gaon Sabha
Land
i.e.
Gata
No.
850
and
the
Consolidation Officer concerned directed
the revenue officials to record the name of
petitioner's Institution over the land i.e.
Gata No. 850 vide order dated 12.02.2001
and being aggrieved by the order dated
12.02.2001 the appeal was filed by the 11
appellants including the Members of Gram
Panchayat, State of U.P. as also the
Members of Consolidation Committee and
taking note of the facts of the case as also
that Section 11-C of the Act of 1953
provides that the interest of the Gram
Sabha shall be protected by the authorities
under the Act of 1953, the appeal was
entertainable and maintainable. To support
the aforesaid contention, learned counsel
for the State also placed the reliance on the
judgment passed in the case of Chhotey Lal
&
Ors.
vs.
Up-Zila
Adhikari/SubDivisional
Magistrate
and
Ors.;
MANU/UP/1187/2004.

10. On the issue of maintainability of
appeal after de-notification under Section
52 of the Act of 1953, the Co-ordinate
Bench of this Court in the judgment passed
in the case of Dahari Lal & Ors. vs. D.D.c.
& Ors., MANU/UP/2756/2010: 2010(6)
ADJ 705, observed as under:-

"18. Division Bench decisions of
this Court in the cases of Ram Bahadur and
Jiwa Ram and Anr. (supra) are cited before
me by Petitioners' counsel wherein it is
clearly held that in certain circumstances,
restoration
application or
application
challenging an ex parte order will be
governed by Section 52(2) of the Act,
therefore. Settlement Officer, Consolidation
and Dy. Director of Consolidation were
liable to hear objection raised on behalf of
Petitioners, at least examine question on
merits
instead
of
cursorily
rejecting
objection without judicially examining the
entire matter.

19. Sub-section (2) of Section 52
of the Act was added by U.P. Act 8 of 1953
which is an exception to Sub-section (10).
Section 52 of the Act does not take away
vested right of appeal which is continuation
of proceedings even after denotification
and appeal or revision is maintainable if
delay is sufficiently explained.

20. In the case of Fateh Singh v.
Dy. Director of Consolidation, Mathura
and Ors. MANU/UP/2135/2004 : 2004 (96)
RD 559 : 2004 (5) AWC 4167, this Court
held that provision of Section 5 of
Limitation
Act
to
consolidation
proceedings is made applicable by virtue of
Section 53B which reads as under:

53B. Limitation.--The provisions
of Section 5 of the Limitation Act, 1963
shall apply to the applications, appeals,
revisions and other proceedings under this
Act or the rules made thereunder.
1458 INDIAN LAW REPORTS ALLAHABAD SERIES
21. It is, therefore, incumbent on the
consolidation authorities that in the event
application for condonation of delay is
moved and the delay is sufficiently
explained then it will have an effect of
obliterating different status between an
appeal filed within time or filed after lapse
of period of limitation. Settlement Officer,
Consolidation has not even tried to look
into grounds for condonation of delay but
dismissed the appeal as not maintainable
since appeal was filed after village stood
denotified.

22. Similar view was accepted in
the case of Tara Chand and Anr. v. Dy.
Director of Consolidation Ballia and Ors.
MANU/UP/0805/2003 : 2004 (96) RD 193
: 2004 (2) AWC 1236, that appeal can be
made maintainable in the event delay is
sufficiently
explained.
Obviously,
Settlement
Officer,
Consolidation
has
completely overlooked explanation given in
the application for condonation of delay.
He has failed to examine the question of
limitation and the reason/explanation for
delay.

23. In the case of Bechan Ali v.
Dy. Director of Consolidation/A.D.M.
Siddharthnagar
and
Ors.
MANU/UP/1060/2001 : 2001 (92) RD 317
: 2001 (2) AWC 1003, it was held that an
appeal or revision can very well be filed
even after denotification against the order
which was passed prior to the date of
denotification in spite of fact that limitation
of filing of an appeal or revision has
already expired."

This Court in the case of
Sudarshan and Ors. vs. Chief Revenue
Officer and Ors., MANU/UP/1960/2021:
2022 (154) RD 43, on the issue involved in
the petition, observed as under:-

"11. So far as maintainability of
the appeal after denotification under
Section 52 of the U.P.C.H. Act is
concerned, in the case of Siddh Narayan
(supra), a Co-ordinate Bench of this Court
has already held, after considering the
decision of a Division Bench of this Court,
that the filing of an appeal is a statutory
remedy available to the parties and the
same
cannot
be
hampered
due
to
denotification under section 52 of the
U.P.C.H. Act. Relevant paragraphs i.e.
paragraph 10, 11, 13, 14 and 15 of the
aforesaid judgment is quoted below:-

"10. From the aforesaid it would
be seen that sub-section (2) of Section 52
which has been added by amending Act No.
VIII of 1963 is a deeming clause which
clearly provides that for the purpose of
giving effect to the orders which may be
passed by a Court of competent jurisdiction
either in cases of writs or proceedings
pending under the Act on the date of
issuance of notification under Section 52,
consolidation operation shall not be
deemed to have been closed.

11. There is nothing either in
Section 11 or in Section 52 of the Act which
either
expressly
or
by
necessary
implication takes away the right of appeal.
In view of the deeming clause contained in
Section 52 (2) of the Act, in cases where the
proceedings under the Act are pending on
the date of issuance of notification under
sub-section (1), the consolidation operation
shall not be treated to be closed meaning
thereby in such cases the provisions of the
Act shall continue to remain in force as if
notification under Section 52 notifying the
close of consolidation operation has not
been issued.

13. The question whether an
appeal or revision could be filed even after
issuance of notification under Section 52(1)
of the Act came up for consideration before
a learned Single judge in the case of Gopi
Singh v. Deputy Director of Consolidation,
MANU/UP/0345/1967 : 1967 AWR 264.
3 All. Parag Memorial Educational Instit. Vs. Gram Panchayat Sarehri & Ors.
1459
Learned Single judge while holding that the
appeal would be maintainable observed as
under:

"The term proceedings' in Section
52(2) has, in my opinion, been used in that
comprehensive sense to include the entire
series of proceedings commencing from the
one
which
is
initiated
before
the
Consolidation Officer and including that
taken in the appeal Court. When an appeal
is
instituted
the
proceeding
which
commenced in the trial Court continues.
The appeal does not initiate a fresh
proceeding. On the institution of the appeal
the proceedings which have become
dormant on the decision by the trial Court,
revive and remain pending. The only
difference being that it is now pending in a
different Court, namely the court of
appeal."

It was further observed:

"The word cases' in the phrase
cases of writs filed under the Constitution',
in sub-section (2) will include orders
passed by higher Courts of appeal
including the Supreme Court. Thus, subsection (2) is designed to preserve and
make effective orders passed by any one or
more of the hierarchy of Courts established
under the Act, irrespective of whether the
proceeding was pending in any particular
Court or in any Court subordinate thereto,
on the date of issue of the notification in
sub-section (1)."

14. The aforesaid view of the
learned Single judge was approved by a
Division Bench in the case of Dilawar
Singh
v.
Gram
Samaj,
MANU/UP/0142/1973 : 1972 AWR 557.
The same was the view of another Division
Bench in the case of Ram Bahadur v.
Deputy
Director
of
Consolidation,
MANU/UP/0143/1973 : 1973 AWR 207.

15. The same principle have been
applied with equal force in case of a
revision before the Deputy Director of
Consolidation under Section 48 of the Act
by the Division Bench in the case of
Dilawar Singh (supra) wherein it was
observed as under:

"The principle of a vested right of
litigant to take a proceeding to the superior
Court by an appeal would be equally
applicable in case of a revision. It is true
that a revision is a power conferred on a
Court or authority to be exercised at its
discretion but it does not mean that the
litigant does not possess the right to
approach the superior Court through a
petition for revision. The only basic
difference between an appeal and a
revision is that in case of an appeal the
appellant is entitled to a relief if he
succeeds in establishing that the order of
the subordinate Court or authority was
unsound contrary to law. In case of a
revision that Court has discretion to refuse
the relief if, for example, in its opinion
substantial justice had been done between
the parties although the order sought to be
revised suffered from infirmities which
could justify an interference by the revising
Court ............ If under a statute a party has
a right to approach the superior Court with
a prayer to revise the order of the
subordinate Court, the proceeding can be
said to be pending till the right to exercise
the right of approaching the superior Court
subsists in the applicant and so long that
right subsists, it cannot be said that the
proceedings had finally come to an end.
The right to approach the superior Court
through an appeal or a revision can be
exercised only after an adverse judgment
or order is passed against the party. Till
then the right only remains dormant and
when that right is exercised, the original
proceedings become pending."

12. In this conspectus as above, I
do not find any merit in the present writ
1460 INDIAN LAW REPORTS ALLAHABAD SERIES
petition. Counsel for the petitioners could
not substantiate his submissions as made in
assailing the impugned orders passed by
the S.O.C. and the D.D.C. The findings
recorded by the S.O.C. with regard to non
compliance of the provisions as enshrined
under section 25-A of the U.P.C.H. Rules
and not controverting the pleadings taken
by the appellants, by filing the counter
affidavit, became final between the parties,
inasmuch as, the same has neither been
challenged before the Revisional court nor
before this Court in the present writ
petition. There is no illegality, perversity or
any manifest error in the impugned orders
so as to warrant the indulgence of this
Court in exercise of its extraordinary
jurisdiction under Article 226 of the
Constitution of India.

13. Present writ petition is devoid
of merits and it is, accordingly, dismissed."

12. Upon due consideration of
aforesaid and also the undisputed position
that the appeal was filed after publication
of notification under Section 52 of the Act
of 1953 as also that to controvert the law
settled by the Co-ordinate Bench of this
Court in the judgment(s), referred above,
no authority has been placed before this
Court by Mr. Khan, learned Senior
Advocate, this Court finds no force in the
present
petition.
It
is
accordingly
dismissed. No order as to costs.
----------
(2024) 3 ILRA 1460
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.03.2024

BEFORE

THE HON'BLE JASPREET SINGH, J.

Matter Under Article 227 No. 541 of 2024
alongwith
Matter Under Article 227 No. 1644 of 2022

Smt. Shobha Srivastava & Ors.
 ...Petitioners
Versus
District & Session Judge Faizabad & Ors.
 ...Respondents

Counsel for the Petitioners:
Vipin Kumar Mishra

Counsel for the Respondents:
R.R. Upadhyaya, Pradeep Kumar Singh, Vats
Srivastava, C.S.C., Dr. V.K.

Civil Law - Limitation Act, 1963 - Article
136, Sections 3, 5 & 15 - Execution of Decree
- Time-Barred Execution Application - Petitioners
(judgment-debtors)
challenged
execution
proceedings (Execution Case No. 8/2017) arising
from a decree of eviction dated 21.01.1982 in
SCC Suit No. 57/1980, filed on 19.07.2017, as
time-barred under Article 136, which prescribes
a 12-year limitation period for executing a
decree from the date it becomes enforceable.
Decree
challenged
in
revision
(dismissed
12.05.1983)
and
writ
petition
(dismissed
22.01.1997) with no stay orders. Execution
application, filed 35 years after the decree and
20 years after writ dismissal, was accompanied
by a Section 5 condonation application, which
was not pressed. Executing Court and Revisional
Court erred in not addressing limitation as a
jurisdictional issue under Section 3, wrongly
assuming Section 5 applicability to execution
proceedings. Supreme Court rulings, including
SBI Vs B.S. Agriculture Industries (2009) 5 SCC
121
and
W.B.
Essential
Commodities
Vs
Swadesh Agro (1999) 8 SCC 315, confirm
Section
5
inapplicability
to
execution
applications and mandate courts to examine
limitation irrespective of defense. Execution
application, filed beyond 12 years (expiring 1994
or at latest 2009), was time-barred. Impugned
orders (06.04.2018, 07.08.2018, 14.09.2021,
10.11.2021,
28.04.2022,
31.05.2022,
24.01.2024) set aside as erroneous, and
Execution Case No. 8/2017 dismissed as timebarred. Petitions allowed with Rs. 50,000/- costs
payable by petitioners to private respondents