Judgment:
P.K. Tripathy, J.
1.The aforesaid three Civil Revisions have been filed against three separate orders passed against the petitioner by learned Civil Judge (Sr. Division), Gunupur on 28.8.1999. All the three revisions were heard analogously and are disposed of by this common judgment.
2. Petitioner is the decree-holder and he filed Execution Petition No. 7 of 1996 in the Court of Civil Judge (Senior Division), Gunupur claiming realisation of the compensation amount awarded in his favour. It is noted in the impugned order and not disputed by the parties that an area of Ac. 5.10 cents of land of the petitioner in village Maratiguda was acquired by the State for the purpose of construction of rehabilitation colony of the flood affected people of Gunupur. A Notification under Section 4(1) of the Land Acquisition Act, 1894 (in short 'the Act') was made on 10.12.1980 and award under Section 11 was passed by the Collector on 13. 9.1981. Possession of the land was taken by the Collector on 15.9.1981. The L.A. Collector determined the total compensation of Rs. 48,573.24 paise. Petitioner received that amount under protest and claimed for a reference to the Civil Court. A reference under Section 18 was accordingly made and that was registered as M.J.C. No. 43 of 1989. Learned Civil Judge (Senior Division) passed the award under Section 26 of the Act on 27.11.1990 determining the market value of the acquired land at the rate of Rs. 40,000/- per acre and also awarded permissible statutory benefit as amended by Act 68 of 1984. Appeal under Section 54 of the Act carried by opposite party vide F.A. No. 103 of 1991 was dismissed and the award passed by the Civil Judge (Senior Division) was confirmed. That appeal was disposed of by this Court on 18.11.1991, but before that on 30.11.1990 in the Court below petitioner moved an application for amendment of the decree to award the benefit under Section 23(2) of the Act. That application was allowed by the Court below on 21.12.1990 and the solatium was enhanced to 30%. On 12.4.1991 petitioner filed another application registered as M.J.C. No. 14 of 1991 seeking review of the award and for necessary correction so as to amend the benefit under Section 28 as amended by Act 68 of 1984. That application was allowed on 30.7.1993. Petitioner again filed an application under Section 151, read with Section 152, CPC for amendment of the judgment and decree to grant the benefit under Section 23(1-A), 23(2) and 28 of the Act as amended by Act 68 of 1984. That was, registered as M.J.C. No. 30 of 1993. Learned Civil Judge (Senior Division) allowed that application on 8.10.1996. Thereafter, petitioner amended the execution application, but before that he had already received a sum of Rs. 3, 50,000/- besides the amount awarded under Section 11. When the matter stood thus, the opposite party filed application under Section 47, C.P.C. for disposal of the execution proceeding on the grounds that the benefit granted to the petitioner under Sections 23(1-A), 23(2) and 28 of the Act and amendment of the decree by the court below from time to time in that respect are not tenable in the eye of law and therefore the decree-holder was not entitled to any further payment and that excess amount had been paid.
3. Learned Civil Judge (Senior Division) referring to and relying on the case of Bai Shakriben (dead by Natwar Melsingh and Ors., v. Special Land Acquisition Officer and Anr., AIR 1996 SC 3323 recorded the findings that amendment of the award was made without jurisdiction and therefore such decree is not executable. Accordingly, he accepted the prayer of the judgment-debtor/opposite party and on 28.8.1999 passed three separate orders allowing MJC No. 15 of 1998 (under Section 47, CPC) as against which petitioner filed Civil Revision No. 425 of 1999. Petitioner's application under Section 151, CPC to recall the previous order of adjournment vide MJC No. 16 of 1998 was also rejected being devoid of merit and that order is under challenge in Civil Revision No. 426 of 1999. In view of the order passed in M.J.C. No. 15 of 1998 allowing theapplication under Section 47, CPC, learned Civil Judge passed the consequential order dismissing the execution petition and that order is challenged in Civil Revision No. 424 of 1999.
4. So far as the Civil Revision No. 426 of 1999 is concerned, petitioner feels aggrieved by the order passed in rejecting his application under Section 151, C.P.C. In that application petitioner has prayed to recall the orders dated 27.4.1998, 5.5.1998 and 16.7.1997 and to dismiss the application of the judgment-debtor for this default in appearance on such dates. The court below has found that the Presiding Officer of the Court was not available to hear the execution petition and the objection raised by the judgment-debtor and therefore order of adjournment passed on those three dates are neither illegal nor unjust or improper and therefore did not require to be recalled. Accordingly, application under Section 151, CPC filed by the petitioner was rejected. After perusal of the case record of the execution proceeding this Court finds no illegality or jurisdictional error in that order. Hence, Civil Revision No. 426 of 1999 is devoid of merit and accordingly dismissed.
5. The order impugned in Civil Revision No. 424 of 1999 is dependent on the result of Civil Revision No. 425 of 1999 i.e., the matter relating to application under Section 47, CPC moved by the judgment-debtor/opposite party. In that respect, it be noted that if the impugned order shall be found sustainable then dismissal of the execution petition will not be interfered with. On the other hand, if the order passed in M.J.C. No. 15 of 1998 (application under Section 47, CPC) shall be found to be not sustainable then as a necessary consequence the execution proceeding shall revive for disposal in accordance with law and accordingly the order of dismissal shall be disturbed.
6. It appears from the above noted fact that the award which was made under Section 26(1) shall be deemed to be a decree as per the provision under Section 26(2) of the Act. In the case of Union of India and Anr. v. Reghubir Singh (dead) by LRs. etc., AIR 1989 SC 1933 a Constitution Bench of the apex Court consisting of five judges have laid down the law prohibiting the authority of the Court to amend the award on intermittent applications and by amending the award passed under Section 26(1) of the Act. Such an amendment has been observed to be illegal and without jurisdiction. That view has been reaffirmed in the subsequent decisions of the Apex Court. See the cases of Prem Nath Kapur and Anr. v. National Fertilizers Corporation of India Ltd. and Ors., 1996 (2) SCC 71 and Urban Improvement Trust, Jodhpur v. Gokul Narain (dead) By LRs. and Anr., 1996 (4) SCC 178, : AIR 1996 SC 1819. It has also been propounded by the Apex Court that nicety of decree can be raised at the stage of execution of the decree. Such ratio having been correctly followed by learned Civil Judge, this Court finds no illegality in the approach of the Court below for allowing the application under Section 47, CPC.
7. In course of argument so also in the execution petition calculation of the decretal amount which the petitioner has made is found to be unduly excessive and the basis of calculation is impermissible. For the sake of discussion if it would be accepted that amendment allowed by amending the decree having not been challenged by the State that is liable to be executed then also it is seen that as per the ratio in the case of Union of India (supra) the apex Court has clearly laid down the principle that the percentage of the solatium is to be determined only on the market value of the land and not by adding the interest or additional compensation and similarly interest is to be calculated on the basis of amount awarded as compensation but without adding the amount of solatium or other benefits. In other words, the amount determined towards the solatium shall not carry any interest. Therefore, even on a tentative calculation this Court finds that an amount of Rs. 3,98,573/-which the petitioner had received by 3.9.1993 is sufficient to cover all entitlements flowing from such amended decree. But the above observation is only for the sake of discussion inasmuch as in view of the ratio laid down by the apex Court petitioner is undoubtedly not entitled to claim compensation in accordance with Section 23(1-A) and so far as the amendment of the decree with respect to Section 23(2) and 28 of the Act are concerned the same was done without jurisdiction. For the reasons indicated above, this Court finds no illegality in the impugned order passed in M.J.C. No. 15 of 1998. Accordingly, the Civil Revision No. 425 of 1999 is dismissed.
8. As noted in a preceding paragraph the order of dismissal of the execution proceeding is dependent on the manner of disposal of the application under Section 47, C.P.C. Order/of the Court below having been upheld/relating to the objection under Section 47, CPC. Therefore, the order of dismissal of Execution petition is not liable to be interfered with. Accordingly, Civil Revision No. 424 of 1999 is also dismissed.
9. In the result all the three Civil Revisions stand dismissed. No cost. Hearing fee is assessed at contested scale.