of Rajasthan & Ors Vs. Raj Singh & Anr
 INSC 756 (8 July
K.Ramaswamy, K.G.B. Pattanaik (J)
JT 1996 (7) 194 1996 SCALE (5)688
APPEAL NO 9522 OF 1996 (Arising out of SLP (C) No.3626 of 1996)
O R D
IN C.A.9522/96 ( @ SLP (C) No.3626/96)
have heard learned counsel on both sides.
appeal by special leave arises from the order of the learned single Judge of
the High Court of Rajasthan at Jaipur made on December 15, 1995 in Miscellaneous (Def) No.631 of 1993. It is enough to
narrate the salient facts for the purpose of disposal of this case.
under Section 4 of the Rajasthan Land Acquisition Act, 1953 was published on January 18, 1982 acquiring a total extent of 2570 bighas
15 biswas of land in village Desh, Tehsil Sanganer, Jaipur for public purpose.
On reference, the land Acquisition
Court determined the
compensation by its award and decree dated July 28, 1992. An application for supply of
certified copies of judgment and decree was filed and on supply of a copy of
the judgment the appeal had been filed with a delay of 147 days. When the
matter had come up before the court, it was pointed out by the court by order
dated October 6, 1993 that the decree had not been filed along with the
memorandum of appeal and the court, therefore, directed the appellant to
produce the decree within three weeks from that date. It would appear and an
affidavit was filed in the High Court that in spite of the appellant filing an
application for furnishing certified copy of the decree, the civil court had
not drawn up the decree. The matter came up again for orders on January 11,
1995 and the learned Advocate General had pointed out the omission on the part
of the civil Court to draw up the decree, in spite of their having applied for
supply of the certified copy of the decree. Thereon, by order dated January 31, 1995 the High Court directed the civil
court to prepare the decree within four weeks from that date and to supply the
same. Accordingly, decree was prepared by the civil Court on January 31, 1995 and the same came to be filed on
supply in the High Court as directed by order dated January 11, 1995. When the matter had come up before another learned Judge,
by the impugned order he had recalled the orders of the court dated October 6, 1993 and January 11, 1995 and dismissed the application for condonation of delay.
Thus these appeals by special leave.
contended by Shri Aruneshwar Gupta, learned counsel for the State, that there
is no delay in the eye of law since the appeals were already filed before the
limitation began to run. The decree was prepared by the court on January 31, 1995 by which date the memorandum of
appeal was already filed and that the limitation had to run from the date when
the decree was supplied. We find force in the contention. Shri Jain, learned
senior counsel for the respondents, contended that by operation of Section
26(2) of the Land Acquisition Act, 1894 (1 of 1894) (for short, the Act'), the
award is a decree and there is no need to obtain any separate decree as such
and that,therefore,when the appeal was filed with a delay of 147 days, it was
the duty of the appellant to satisfactorily explain every day's delay, in this
case, there is no such explanation and that, therefore, the High Court was
right in recalling the orders and holding that the appellant had not explained
find no force in the contention.
53 of the Act provides that:
in so far as they may be inconsistent with anything contained in this Act, the
provisions of the Code of Civil procedure 1908 shall apply to all proceedings
before the Court under this Act." Order 41, Rule 1 CPC provides that:
appeal shall be preferred in the form of a memorandum signed by the appellant
or his pleader and presented to the Court or to such officer as it appoints in
this behalf. The memorandum shall be accompanies by copy of the decree appealed
from and unless the Appellate Court dispenses therewith of the judgment on which
it is founded." Section 2(2) of CPC defines 'decree' to mean "the
formal expression of an adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of the parties with regard to
all or any of the matters in controversy in the suit and may be either
preliminary or final. It shall be deemed to include the rejection of a plaint
and the determination of any question within Section 144, but shall not
include... " Section 54 of the Act gives right of appeal against the award
passed by the civil Court under Section 26 of the Act.
26(2) of the Act prescribes that:
such award shall be deemed to be a decree and the statement of the grounds of
every such award a judgment within the meaning of Section 2, clause (2) and
Section 2, clause (9) respectively, of the Code of Civil Procedure, 1908.
would thus be seen that an appeal filed under Section 54 of the Act shall be
accompanied by a memorandum of grounds together with the judgment and decree as
envisaged under Order 41 Rule 1, CPC unless the copy of the judgment is
dispensed with. Thus, filing of a decree along with the appeal filed under
Section 54 of the Act is a pre- condition for taking further steps in an appeal
filed under Order 41, Rule 1, CPC. It is true that by fiction of law the award
of the civil Court made under Section 26(1) shall be deemed to be a decree. The
statement of the grounds in the said award shall be a judgment But there is no
inconsistency in the provisions of the Act and Order 41 and the provision of
the Act as regards the appeal filed under Section 54. It would thus be clear
that a formal decree in terms of Section 2, clause (2), CPC as mandated by
Order 41, Rule 1, shall be drawn by the civil Court. When it supplies a
memorandum of the award which is a judgment for filing an appeal under Section
54 of the Act, a copy of the decree duly certified is required to be supplied
and filed with memorandum of grounds of appeal. Admittedly, the civil court had
not supplied the decree drawn as required under Order 2, Rule 2.
limitation begins to run from the date of the supply of the certified copies of
the judgment and decree. The time taken by the court for their supply from the
date of application till the date of supply should be excluded in computation
of the period of limitation. Even if application for certified copies of
judgment and decree were separately filed, the combined period would be
excluded. Therefore, the right to file an appeal arises only from the date when
the decree was supplied.It is seen that the High Court had passed a judicial
order on January 11,
1995 directing the
trial Court to prepare the decree and supply the same within four weeks.
Earlier, it was not supplied though the appellant had applied for. Accordingly,
the decree was prepared on January 31, 1995
and the same was filed as soon as it was supplied. It would thus be clear that
no delay was brooked in filing the appeal since the appeal must be deemed to
have been filed after the supply of the decree by the trial Court. The learned
single Judge had no power to recall the orders passed by the High Court on
October 6, 1993 and January 11, 1995 except in accordance with due procedure.
of the petition in the impugned order is obviously illegal. The learned single
Judge was oblivion to and has not addressed himself to the correct legal
position in proper perspective.
appeal is allowed. The impugned order of the High Court stands set aside.
Accordingly, the matter is remitted to the High Court. The High Court would
dispose of the appeal on merits according to law.
IN C.A. 9783 /95 (@ SLP (C) No.5670/95) Leave granted.
the decision rendered in the appeal above, this appeal is disposed of and the
matter is remitted to the High Court. The High Court would dispose of this
appeal on merits according to law. No costs.