IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15349 of 2011 Awadhesh Prasad Srivastava Versus Rambhajan Koiri & Ors ---------------------------------- 02. 14.09.2011 Heard the learned counsel for the petitioner. This application under Article 227 of the Constitution of India has been filed by the petitioner against the order dated 10.08.2010 passed by 2nd Munsif, Siwan in Title Suit No.227 of 1972 whereby the learned Court below held that since the preliminary decree passed by the Court in partition suit has already been abated in view of the order passed by the appellate Court after issuance of Notification under Section 3 of the Bihar Consolidation (Prevention of Fragmentation) Act, no final decree can be prepared. The learned counsel for the petitioner admitted the fact that defendant had field title appeal No.70 of 1981 in the Court of District Judge, Siwan against the preliminary decree passed in the aforesaid partition suit. The appellate Court thereafter held that the appeal abated because of the notification issued under the Consolidation Act. In view of the Supreme Court decision reported in A.I.R. 1981 (S.C.) 1450, the Judgment, i.e., preliminary decree passed by the trial Court in the aforesaid partition suit also abated. Now, therefore, in view of above settled principle of law when the Judgment 2 and preliminary decree passed by the trial Court in the partition suit has abated, in other words, has seized to exist on the basis of the same, the learned trial Court could not have prepared final decree and, therefore, the learned Court below has rightly rejected the prayer of the petitioner. If so advised, the petitioner may approach the appellate court and if such application is filed by the petitioner before the appellate Court in the appeal, the same may be disposed of according to law. With this above observations, this writ application is accordingly disposed of. Sanjeev/- ( Mungeshwar Sahoo, J.)