| SooperKanoon Citation | sooperkanoon.com/531238 |
| Subject | Civil |
| Court | Orissa High Court |
| Decided On | May-03-2007 |
| Judge | A.K. Parichha, J. |
| Reported in | 2007(II)OLR98 |
| Appellant | State of Orissa |
| Respondent | Baikuntha Nath Panda and anr. |
| Cases Referred | State of U.P. v. Ratan Lal (supra |
A.K. Parichha, J.
Misc. Case No. 105 of 2003
1. This is a petition by the appellant-petitioner for stay of further proceeding of Execution Case No. 10 of 2000 pending in the Court of learned Civil Judge (Senior Division) 1st Court, Cuttack till disposal of this appeal.
2. The plea of the appellant-petitioner is that the award, which is under challenge in the appeal is being executed in the above noted execution proceeding and if the execution is carried then the purpose of the appeal will be frustrated.
3. Objection has been filed by the respondents-opposite parties indicating therein that although their lands were acquired in the year 1985, compensation has not yet been paid as a result they are undergoing undue hardship and irreparable loss. They claim that law does not relish delay in making payment once the award is made and the Land Acquisition Act also clearly prescribes deposit of the awarded amount at every stage of the proceeding and for that reason no stay of the execution proceeding should be granted unless the appellant-petitioner deposits the entire or at least 80% of the awarded amount.
4. Learned Addl. Standing Counsel stated that the provisions of Order 27, Rule 84, CPC exempts the State Government from demand of deposit of decretal amount or furnishing of security for such amount as a condition for grant of stay. According to him, the provisions of Order 41, Rule 1 (3) and Order 41, Rule 5(5),C.P.C. are not applicable to the State Government. In support of this contention, he relies on the case of Collector, Cuttack v. Padma Charan Mohanty 50 (1980) CLT 91.
5. Learned Counsel for the respondents-opposite parties contended that as per the provisions of Order 41, Rule 1, Sub-rule (3) and Rule 5 Sub-rule (5), C.P.C. the appellant has to deposit the differential decretal amount or furnish security for such amount in order to obtain stay of the money decree and because no exception has been noted in Order 41, exempting the State Government from depositing the decretal amount, the State-appellant can be directed to deposit the differential decretal amount as a condition for grant of stay. He argued that despite existence of Order 27, Rule 8-A, C.P.C, the apex Court and this Court have in many cases directed the State Government to deposit the decretal amount as a condition for grant of stay, which itself suggest that the alleged exemption of Order 27, Rule 8-A relates to only security and not to deposit of the decretal amount. In support of his contention he relied on the cases of State of Orissa and another v. Pratibha Prakash Bhawan etc. 1990 (I) OLR 164 : 69 (1990) CLT 323; State of U.P. v. Ratan Lal etc., Spl. Land Acquisition Officer, Bangalore v. Dyavappa and Ors. 1995 LACC 637; Chief General Manager, Telecom Orissa v. V.N. Enterprises, A Partnership Firm and four Ors. 2004 (I) OLR 687.
6. In view of the rival submissions of learned Counsel for the respective parties, the following points emerge for consideration:
(i) Whether in an appeal under Section 54 of the L.A. Act the State without deposit of the differential decretal amount can get order of stay of the execution proceeding ?
(ii) Whether in view of the Order 27, Rule 8-A, C.P.C. the State-appellant is exempted from depositing the differential decretal amount or security as envisaged under Order 41, Rule 1 (3) and Rule 5 (5) of the C.P.C. ?
7. At the outset, it will be profitable to note the relevant provisions available in the C.P.C.
Order 41, Rule 1 (3) of the C.P.C. runs as follows:
Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.
The relevant portion of Rule 5 of Order 41 runs as follows:
5. Stay by Appellate Court:
xx xx xx xx(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in order staying the execution of the decree
Rule 8-A of Order 37, C.P.C. reads thus:
No such security as is mentioned in Rules 5 and 6 of XLI shall be required from the government or, where the government has undertaken the defence of the suit, from any pubic officer sued in respect of an act alleged to be done by him in his official capacity.
Sub-rule (3) of Rule 1 and Sub-rule (5) of Order 41 were introduced by Civil Procedure Code Amendment Act, 1976. Prior to that the State Government was exempted from being required to furnish security as per the provision of Order 41, Rule 7 of the C.P.C. This provision was omitted and by way of amendment re-enacted as Order 27, Rule 8-A. Sub-rule (3) of Rule 1 imposes an obligation on the appellant, who has appealed against a decree for payment of money either to deposit the amount in dispute in appeal or furnish such security in respect thereof as the Court may direct. By introduction of Sub-rule (5) of Rule 5 of Order 41 where it was intended that where an appeal is against a decree for payment of money, the appellant must deposit the amount in dispute in appeal or furnish security notwithstanding anything contained in Sub-rules (1), (3), (4) of Rule 5. Rule 8-A of Order 27 however provides an exemption. It says that no such security as mentioned in Rules 5 and 6 of Order 41 shall be required from the Government. Sub-rule (5) of Rule 5 expressly mentions furnishing security as specified in Sub-rule (3) of Rule 1. So Sub-rule (5) mentions about the security under Sub-rule (3)(c) of Rule 5. A conjoint reading of the above noted provisions would show that although an appellant appealing against a money decree is required to deposit the disputed decretal amount or furnish security for such amount, the Government-appellant in such situation is not liable to furnish security in view of the Rule 8-A of Order 27 of the C.P.C. Keeping this provision in mind a Division Bench of this Court in the case of Collector, Cuttack v. Padma Charan Mohanty (supra) ruled that while granting stay in the execution case the State-appellant is not to be called upon for furnishing security for the due performance of the decree as may ultimately be binding upon it because the solvency of the State Government cannot ever be in doubt. In the case of State of Orissa and Anr. v. Pratibha Prakash Bhawan etc. (supra), this Court after analyzing the provisions of Order 41, Rule 1 (3), Order 41 , Rule 5(5) and Order 27, Rule 8-A, C.P.C. came to the conclusion that security as contemplated under Rule 1 (3) and Rule 5(5) cannot be demanded from the State Government, but deposit of the entire or part of disputed decretal amount can be directed as a condition for grant of stay of a money decree. It was reasoned that Order 47, Rule 8-A, C.P.C. exempts the State Government from furnishing security, but does not bar the Court to demand deposit of the decretal amount as a condition for grant of stay. Mr. Das submitted that the finding of the learned Single Judge in the case of Prativa Prakash Bhawan (supra) will be of no help in view of the ratio laid down in the case of Padma Charan Mohanty's case (supra) by the Division Bench. It is to be noted that in the case of Prativa Prakash Bhawan (supra) learned Single Judge did not differ from the ratio laid down by the Division Bench in Padma Charan Mohanty's case, but interpreting the provisions an observation was only made that demand for deposit of the decretal amount is not prohibited under Order 27, Rule 8-A of the C.P.C. It is worthwhile to note that in the case of Chief General Manager, Telecom, Orissa (supra) a Division Bench of this Court directed the Central Government to deposit the decretal amount and allowed the respondent to withdraw a part of it without furnishing bank guarantee. In this judgment the Division Bench also took the view of that Order 27, Rule 8-A, C.P.C. does not prohibit the Court from insisting upon the Government or public officer to deposit the entire or part of the disputed decretal amount. In the case of State of U.P. v. Ratan Lal (supra) the apex Court in a land acquisition matter directed the State to deposit 50% of the awarded amount in the reference Court and allowed the respondent to withdraw 50% of such deposited amount without security and the rest 50% on furnishing security. A close reading of the provisions of Order 41, Rule 1 (3), Rule 5 (5), Order 27, Rule 8, C.P.C. alongwith the above noted case laws make it clear that in an appeal against a money decree the State Government-appellant cannot be asked to furnish security for the disputed decretal amount, but it can be asked to deposit of the entire disputed decretal amount or part thereof before grant of stay of execution of the money decree.
8. Regarding applicability of Order 27, Rule 8-A, C.P.C. to a land acquisition appeal, it is worthwhile to note that Land Acquisition Act is a self-content Act and Section 53 of the Act provides that the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court under the L.A. Act. So far as the provisions are not inconsistent with the provision of the L.A. Act. So the provisions of the C.P.C. shall apply to all proceeding under the L.A. Act unless the provisions are inconsistent with the spirit and contents of the L.A. Act.
9. According to learned Counsel for the claimant-respondent, Chapter-V of the Land Acquisition Act deals with deposit of the awarded amount at every stage and the provisions of Order 27, Rule 8-A, C.P.C. being inconsistent with the provisions of Chapter-V of the L.A. Act must stand excluded in view of Section 53 of the Act. In case of Prem Nath Kapur (supra), while dealing with the matter relating to the L.A. Act, the apex Court observed in paragraph-16 of the judgment as follows:
It is seen that by operation of Section 53 of the Act, Order 21, Rule 1 being inconsistent with the express provisions contained in Section 34 and 28 stands excluded.
10. Order 27, Rule 8-A, C.P.C. speaks about scrutiny only. It says that scrutiny mentioned in Rule 5 and Order 6 of Order 41 cannot be demanded from the State Government but it does not say that deposit of the decretal amount cannot be demanded in an appeal from a money decree. So, this provision is not inconsistent with the provisions of the L.A. Act.
11. It can be gathered from the above noted observation that whenever any provision of the C.P.C. is inconsistent with the express provision of the Act, in view of bar provided in Section 53 of the Act, the specific provision contained in L.A. Act would prevail.
12. In case of Gurpreet Singh (supra) also the apex Court repeatedly observed that the L.A. Act does not contemplate anything about security but contemplates deposit of the award in Court at every stage of the proceeding. Sections 28, 31, 34 of the Act.
13. It can not be lost sight of that in majority cases compensation for the acquired land is not paid promptly and the land owners have to wait for decades to get their actual dues which they are entitled to be paid. In their anxiety to gear up the process of payment of compensation, the Land Acquisition Act was drastically amended raising solatium from 15% to 30%, interest from 6% to 9% for the first year of the government taking over possession and 15% for subsequent years till payment or deposit is made. So, the legislative intent can be achieved if the compensation amount is deposited in the Court so that the same can be disbursed soon after the termination of the L.A. proceeding without leaving the land owner to lengthy process of execution proceedings. As has been stated earlier, on many occasion, the apex Court and this Court have issued direction to the State Government to deposit the awarded amount or part thereof and have allowed the claimants to take that amount on furnishing security or guarantee.
14. For all the aforesaid reasons, one can reasonably conclude that the bar provided under Order 27, Rule 8-A of the C.P.C. about demand of security from the State Government not being inconsistent with the provision of the L.A. Act, would hold the field. But there being no specific bar in the said provision about deposit of the awarded amount and the spirit of the amended L.A. Act being for ensuring prompt payment of compensation to the land owners, the State Government can be directed for deposit of the differential award amount as a condition for grant of stay of any execution proceeding.
15. In the present case, admittedly an award has been passed in favour of the claimant-respondent for some lands acquired in 1985 and the State-appellant is seeking stay of execution of that award. In such situation, it will neither be illegal nor unreasonable to direct the State-appellant to deposit 50% of the differential award amount in the executing Court as a condition for grant of stay. Accordingly, the prayer of claimant-respondent is allowed. State-appellant is directed to deposit 50% of the differential award amount in the executing Court as a condition for grant of stay of the execution proceeding on such deposit being made, the Execution Proceeding No. 10 of 2000 pending before the Civil Judge, (Senior Division), 1st Court, Cuttack shall remain under stay and the claimant-respondent would be at liberty to withdraw half of the deposited amount on furnishing security to the satisfaction of the executing Court.
16. Misc. Case is disposed of accordingly.