Baker, J.

1. A preliminary point is taken by the learned Assistant Government Pleader for the respondent, the Secretary of State, in this appeal that no appeal lies.

2. The appeal relates to the apportionment of compensation for certain land acquired in Nasik, and it is contended that under Section 54 of the Land Acquisition Act no appeal will lie against an order passed in respect of the apportionment of compensation in a reference under Section 30 of the Act. The learned Assistant Government Pleader has based his argument first on the fact that under Section 39 of the old Act there was a distinct section referring to the right of appeal against an order apportioning compensation, which does not exist in the present Act, and secondly on the ruling of the Privy Council reported in Ramchandra Rao v. Ramchandra Rao : (1922)24BOMLR963 and it is contended that the Privy Council have held in that case that the term 'award' can only include an order regarding the amount of compensation to be paid for the land acquired and that any order regarding apportionment amongst persons interested is not an award. At p. 970 of that judgment it is stated as follows :-

The award as constituted by statute is nothing but an award which states the area of the land, the compensation to be allowed and the apportionment among the persons interested in the land of whose claims the Collector has information, meaning thereby people whose interests are not in dispute, but from the moment when the sum has been deposited in Court under Section 31 (2) the functions of the award have ceased ; and all that is left is a dispute between interested people as to the extent of their interest. Such dispute forms no part of the award...

3. On a careful examination of the judgment of the Privy Council, however, it does not appear that any decision was arrived at that no appeal lies from the decision determining the rights of various rival candidates to the whole or part of the award. The point which arose before the Privy Council in that case was of a different nature, and, although the order determining the apportionment of the compensation is not, in view of the Privy Council ruling, an award within the meaning of Section 54 of the Land Acquisition Act, that only means that it is not governed by the provisions regarding appeal contained in the latter part of that section. It does not mean that there is no appeal against it. Even in the judgment under reference the Privy Council says (p. 970) :-.it would indeed bo strange if a controversy between two people as to the nature of their respective interests in a piece of land should enjoy certain rights of appeal which would be wholly taken away when the piece of land was represented by a sum of money paid into Court.

4. The provisions of Section 54 of the Land Acquisition Act are subject to the provisions of the Code of Civil Procedure, 1908, and, although the order determining the rights of the parties is not, in view of the Privy Council judgment, an award, it is certainly a decree or of the nature of a decree and an appeal would lie against it. That is the interpretation which has been put on the Privy Council judgment in Venkatareddi v. Adinarayana Rao I.L.R. (1928) Mad. 142 It would be extraordinary if, without special words to that effect, the Legislature had deprived the parties, who dispute the apportionment of the compensation, of the appeal which they had under Section 39 of the old Act. That section corresponds to the present Section 54, and, as the Privy Council have pointed out, so far as the award, which means the amount of compensation, is concerned, there are special provisions for an appeal in that section, the dispute as regards apportionment being governed by the ordinary law. I am, therefore, of opinion that there is no bar for an appeal under Section 54 of the Land Acquisition Act and that the appeal should be heard on the merits.

Rangnekar, J.

5. I agree. In support of the preliminary objection the learned Assistant Government Pleader relied upon (1) Section 54 of the Land Acquisition Act, (2) the Privy Council decision in Ramchandra Rao v. Ramchandra Rao : (1922)24BOMLR963 and (3) certain amendments made in the present Act.

6. Taking the first contention, it seems to me as a matter of construction of Section 54 of the Land Acquisition Act that a special right of appeal is given in cases of an award or part of an award, but that the rights of litigants in proceedings under the Land Acquisition Act, relating to what the Act calls apportionment, are expressly saved by the first sentence in that section. If this is correct, then the only question is whether a decision as to rival claims to the amount of compensation awarded is a decree or not.

7. This brings me to the second point. The answer to the question which I have raised is to be found in the case on which Mr. Rao relies. A careful perusal of the decision makes it clear that a decision on a disputed question of title between rival claimants as regards the amount of compensation is a decree appealable in the ordinary manner laid down in the Civil Procedure Code. The Privy Council case, speaking for myself, seems further to indicate that if a party against whom an adverse decision is made as regards the question as to his title to receive either the whole or a portion of the compensation does not appeal from such decision in the ordinary way, that decision would operate as res judicata in any subsequent litigation that may bo started as regards the same question between the same parties or parties claiming through or under them. The facts in that case were that a Hindu had settled certain property on his wife. Part of that property was acquired in 1894 and the question arose as to whether the widow claiming under the settlement was entitled to an absolute estate in the compensation money or whether under the terms of the settlement deed she took only a widow's estate. It is clear from the arguments and the report of the case that the question arose in proceedings under the Land Acquisition Act. The matter came before the District Court of Tanjore. The District Judge held that the widow took an absolute estate. An appeal to the High Court from that decision by the opposite party resulted in a reversal of the decision of the District Judge, the High Court holding that she took only a limited estate. No further proceedings were taken thereafter. In 1916 long afterwards, the reversioners raised the same question by an independent suit and obtained a decision in their favour in the trial Court which was reversed by the High Court which this time held that under the terms of the deed the widow took an absolute estate. In the appeal to the Privy Council the principal question was whether the decision in the earlier litigation commenced under the provisions of the Land Acquisition Act, was res judicata on the question as regards the the interest of the widow under the settlement deed and their Lordships observed that in their Lordships' opinion the decision given in 1897 by the High Court at Madras was a clear and complete determination as between the parties to that suit and those claiming under them, which the present litigants could not dispute. It seems to me that the Privy Council decision shows clearly that a decision on the question of the respective interests of the claimants in the compensation awarded under the Act is a decree appealable in the ordinary way.

8. Now, there is a clear distinction between an award and a decree. It is only to make that position clear and to state that the award ranks as high as a decree that the amendment on which Mr. Rao relies seems to have been made in the present Act by Sub-section 2 of Section 26. That sub-section says that an award shall be deemed to be a decree.

9. I am not disposed to attach much importance to the last argument of Mr. Rao that the specific provisions as regards right of appeal in apportionment cases given by the earlier Act no longer find a place in the present Act and for the simple reason that it appears that in the old Act by two separate sections rights of appeal were given in the matter of an award and also against orders apportioning the compensation amount between the claimants. Certain other provisions of the Civil Procedure Code were made applicable by a different section. All this has been now done away with and the same result has been achieved by the opening words of Section 54. In my opinion, therefore, the Privy Council case on which Mr. Rao relies, instead of supporting his contention, really goes against it. This view is further supported by a decision of the Madras High Court in Venkatareddi v. Adinarayana Rao I.L.R. (1928) Mad. 142 For these reasons I agree that the preliminary objection must be overruled.

10. [Their Lordships then went into the merits of the appeal, and dismissed the appeal with costs.