STATE OF RAJASTHAN AND ORS.versusRAJ SINGH AND ANR. ETC.

A                     STATE OF RAJASTHAN AND ORS.
                                    v.
                         RAJ SINGH AND ANR. ETC.

                                    JULY 8, 1996

B               jK. RAMASWAMY AND G.B. PATTANAIK, J.J.]

          Land Acquisition Act, 1894; Sections 26(2), 53 and 54.

          Code of Civil Procedure 1908: Section 2(2).

c         Land Acquisition-Awarlf-Ap11eal agaillsf:-Dela;-Appella11t filing all
    application for certified copy of decree-Delay Oil the pwt of civil cowt to
    draw up decree-Appellant filing Memorandum of appeal without
    decree-Delay in filing decree but decree filed as soon as it was supplielf-Dis-
    missal of application for condonation of dela5Appeal-Held an appeal filed
D   under Section 54 of the Act shall be accompanied by a memorandum of
    grounds together 1vith ·chc judgnicnt and decree as envisaged under Order 41
    Rule 1, CFC Unless the copy of the Judgment is dispensed with-By fiction
    of law the award of civil cowt made under Section 26(1) shall be deemed to
    be a dccre~When the civil carat had not Sll)Jplied the decree drawn as
E   required under Order 2 Rule 2, the limitation begins to JUI! from the date of
    the supply of the ce1tified copies of the judgment and decree-The time taken
    by the cowt for their supply from the date of application till the date of supply
    should be excluded ill computation of the peiiod af limitation.

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9783 of
F 1996 Etc.
         From the Judgment and Order dated 4.10.93 of the Rajasthan High
    Court in S.B. (C) Misc. A. No. 402 of 1993.

          Aruneshwar Gupta for the Appellants.
G
         S.M. Jain, Sushi! Kr. .Jain, B.D. Sharma Adv. (NP) and L.C.
    Agrawala for the Respondents.

          The following Order of the Court was delivered:

H         Jn C.A. 9522/96 (@ SLP (C} No. 3626/96)
                                           210
                           STATEv. RAJ SINGH                              211

      Leave granted.                                                             A

      We have heard learned counsel on both sides.

       This 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         B
the salient facts for the purpose of disposal of this case.

      Notification under Section 4 of the Rajasthan Land Acquisition Act,
1953 was published on .I anuary 18, 1982 acquiring a total extent of 2570
bighas 15 biswas of land in village Desh, Tehsil Sanganer, Jaipur for public
purpose. On in reference, the Land Acquisition Court determined the
                                                                                 c
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 D
been filed along with the memorandum of appeal and the court, therefore,
directed the appellant to produce the decree with 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
                                                                              E
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 F
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 ap- G
peals by special leave.

       It is contended by Shri Aruneshwar Gupta, learned counsel for the
Stale, 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             H
    212                   SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A 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
B   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 the delay. We find no force in the contention.

C         Section 53 of the Act provides that:

            "Save in so far as they may ']e 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."

D         Order 41 Ruic 1 CPC provides that:

            "Every 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 accompanied by copy of the decree appealed from and
E           unless the Appellate Courl: 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, con-
    clusively determines the rights of the parties with regard to all or any of
F   the matters in controversy in the suit a:id may be either preliminary or final.
    It shall be deemed to include the rejection of a Plaint and the determina-
    tion of any question with Section 144, but shall not include ... "

          Section 54 of the Act gives right of appeal against the award passed
G by the civil Court under Section 26 of the Act. Section 26(2) of the Act
    Prescribes that:

             "Every 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)
H            respectively, of the Code of Civil Procedure, 1908.
                          STATEv. RAJ SINGH                            213

       It would thus be seen that an appeal filed under Section 54 of the A
Act shall be accompanied by a memorandum of grounds together with the
judgment and decree as envisaged under Order 41 Rule l, 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
                                                                              B
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   c
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 memoran-
dum of grounds of appeal. Admittedly, the civil court had not supplied the
decree drawn as required under Order 2, Rule 2. The limitation begins to D
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 E
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 \vithin 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 F
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. Dismissal of the petition in the im-
pugned order is obviously illegal. The single Judge was oblivion to and has G
not addressed himself to the correct legal position in proper perspective.

       The 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.             H
    214                    SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A         JN C.A. 9783/95 (@ SLP (C) No. 5670195)

          Leave granted.

          Following the decision rendered in the appeal above, this appeal is
    disposed of and lhe maller is remitted lo the High Court. The High Court
B   would dispose of this appeal on merits according to law. No costs.

    T.N.A.                                               Appeal disposed of.