State Of Bihar v. Phatik Mandal — 1997 DIGILAW 882 (PAT)

Judgment P.K.Deb, J. 1. These 16 Revision petitions have been preferred by the State of Bihar against the Order dated 16.7.1994 passed in LA. Execution Case Nos. 56, 1559 of 1988, 9 of 1989, 57 of 1988, 14 of 1988, 55 of 1988, 47 of 1988, 48 of 1988, 51 of 1988, 50 of 1988, 52 of 1988, 13 of 1988, 58 of 1988, 8 of 1989, and 54 of 1988 rejecting the objections filed by the petitioner as judgment debtor in all the above Execution cases under Sec. 47 of the Code of Civil Procedure challenging the executability of the decree arisen out of L.A. reference case No. 90 of 1979. 2. The facts in brief are that all the Execution cases arise out of the acquisition of 205.15 acres of land for the construction of Khudia Canal by virtue of a Notification under Sec. 4 of the Land Acquisition Act and a declaration under Sec. 6 of the Act. The Canal passed through 13 villages and, therefore, the acquisition of the land was made in 13 adjoining villages. The Land Acquisition authorities fixed the value of the land acquired and prepared separate awards in the names of the different claimants including the decree holders-Opposite parties in the present case. The claimants were not satisfied with the compensation awarded by the Land Acquisition authorities and as such made an application under Sec. 18 of the L.A. Act for Reference to the Civil Court for determining the adequacy of the compensation. In total a batch of 258 cases under Sec. 18 of the Act had been referred including the reference relating to the present Execution proceedings. Reference Judge tried the batch of reference cases analogously excluding three cases which were referred under Sec. 30 of the L.A. Act and then enhanced the compensation payable to the different awards by a common judgment dated 28.6.1979. While enhancing the compensation the L.A. Judge allowed interest to the awardees on the enhanced compensation at the rate of 6 per cent per annum and also solatium at the rate of 15 per cent as permissible under Sec. 28 of the L.A. Act, which stood prior to the Amended Act, 1984. 3. While enhancing the compensation the L.A. Judge allowed interest to the awardees on the enhanced compensation at the rate of 6 per cent per annum and also solatium at the rate of 15 per cent as permissible under Sec. 28 of the L.A. Act, which stood prior to the Amended Act, 1984. 3. The awardees on the basis of the awards levied Execution proceedings separately for enhanced compensation and those proceedings have been dismissed on full satisfaction of the payment of enhanced compensation and solatiun on 1.7.1982. The State of Bihar against such enhancement in the L.A. Reference cases had preferred appeals before the High Court, but those appeals were summarily dismissed by the High Court on 6.8.1982. 4. During the pendency of the appeal, the Land Acquisition Amendment Bill 1982 was introduced in Parliament on 30th April, 1982 and become the Law as the amended Land Acquisition Act, 1984, when it received the assent of the President on 24.9.1984. By that Amended Act the interest and the solatium had been increased and as per provisions of Sec. 30(2) of the Act, it was made clear that any award made by the Collector or the Court or to any order passed by High Court or Supreme Court in appeal against any such award under the provisions of the previous Act after 30.4.1992 (the date of introduction of the Amendment Bill in the House of People) and before the announcement of this Act the said enhanced rate of interest and solatium would be available to the awardees. Taking advantage of Sec. 32 of the Amended Act and on relying on a decision of the Apex Court in Bag Singh V/s. Union Territory of Chandigarh AIR 1985 SC 576 , the awardees decree holders numbering as many as 65 including the present decree holders-opposite parties filed a petition under Sec. 151/152 C.P.C. on 30.7.1987 before the Land Acquisition Judge, who passed the Award praying for enhanced solatium and interest by modification correction of the award accordingly. The learned L.A. Judge by separate orders dated 14.9.1987 and 26.11.1987 after hearing the applicants and the Government Pleader, appearing for and on behalf of the State allowed the petition and ordered payment of interest and solatium at the enhanced rate in terms of the provisions of the Amended Act, 1984 and as such prayer for amendment of the decree was allowed. The beneficial awardees then filed separate Execution cases including the present Execution cases for releasing of the balance decretal amount as per amended decrees. 5. On the notice being issued under Order XXI Rule 22 C.P.C. various objections were raised regarding non-mentioning of the previous satisfaction of the decrees, the adjustment of the previous paid amount not being shown and as such took the legal objection about the non-executability of the decrees but those objections were not entertained. Then petitions were filed under Sec. 47 of the C.P.C by the State of Bihar after taking some time for getting the decrees being satisfied on payment to the effect that the decrees are inexecutable as the decrees in question had already been satisfied and as such the decrees become extinct and dead in the eye of law, hence there was no scope of any amendment of such decrees which had no existence in the eye of law on the date of such amendment and that the judgment of the Apex Court in 1985 S.C. page 576 had already been distinguished by the Supreme Court in a Larger Bench in the case of Union of India V/s. Raghubir, as . The objection was that at the time the amendment was sought for there was not pendency of Land Acquisition cases either before the Collector or before the Reference Court or before the High Court or Supreme Court and the decree was not in existence as the same has already been satisfied long back in the year 1982 on full satisfaction of the awardees being passed by the Reference Court. Hence that amended decree now sought to be levied for execution is a nullity in the eye of law as per the decisions arrived at by the Apex Court in the Raghubir Singhs case. 6. When the law has been changed the amendment passed on the basis of 1985 S.C. has got no sanctity for the purpose of execution. Other grounds have also been raised regarding non-mentioning of the earlier satisfaction of the decrees and deduction of the amounts already paid etc. etc., but the main ground is with regard to the non-executability of the decree. 7. Other grounds have also been raised regarding non-mentioning of the earlier satisfaction of the decrees and deduction of the amounts already paid etc. etc., but the main ground is with regard to the non-executability of the decree. 7. Decree holders-Opposite parties filed rejoinders in the petitions filed under Sec. 47 C.P.C. supporting the amendment of the decrees and their further contention was that the same objections regarding amendment of the decrees were taken by the State of Bihar before the L.A. Reference Court and those objections had already been rejected and that the amendment of decree was allowed and such amendment of the of the decree were never been challenged in appeal or revision before the higher Courts and as such the amendment of the decree remained unchallenged and when such decree after amendment gave beneficial effect to the decree holders they are entitled to get the benefit given by levying execution of the decree. 8. The learned Court below by an analogous order, as mentioned above, rejected the plea of the judgment debtor-State of Bihar and upheld the execution of the decree and asked the State of Bihar to make payment of the decretal amounts to the various decree holders. 9. These Revision petitions have been filed against that order holding the executability of the decrees. The order imp. is dated 16.7.1994 and the revision petitions have been filed on 30.3.1995 i.e. there was delay of filing of these revision petitions by about four and half months. After the filing of these Revision petitions on 7.9.1995 applications were filed under Sec. 5 of the Limitation Act for condoning the delays in filing of the revision petitions. Notices were issued on limitation matter to the Opposite parties and they appeared but did not file any objection contradicting the pleas taken in the petition under Sec. 5 of the Limitation Act, but they by oral objections contended that the pleas taken for condonation of delay are not worth to be accepted by a Court of law and the red tapism and delay due to the internal communication between the officers of the State Government can in no case be construed as grounds for condonation of delay and these sort of pleas of red tapism and delay in communications between the officials of the different Departments had always been depricated by Courts of law. In support or it, Mr. In support or it, Mr. R.N. Sahay, appearing for and on behalf of the Opposite parties has referred to a Single Bench judgment in Bihar State Electricity Board v. Smt. Prabha Agrawal 1996(1) PLJR 918 . 10. That judgment related to a Review petition filed against the judgment passed in a First Appeal. The settled Judge to the effect that each days delay requireds to be explained satisfactorily for the purpose of condonation of delay as contemplated principle of law had been enunciated by the learned Single under Sec. 5 of the Limitation Act and that the State and an individual stands on the same footing for the purpose of consideration of condonation of delay. Internal movement of the file and seeking legal opinion was held not sufficient to be considered as good and valid grounds for condoning the delay. 11. In the condonation petition filed, it could be found that soon after the order was passed the Government Pleader gave opinion for filing of the revision or appeal against the order and the matter was processed in the Advocate Generals office at Ranchi Bench of Patna High Court. Then the legal opinion was the sought for and the same had also been received with some delay, but then the Election matter came in between which caused the concerned officials I.e. the L.A. Officer to be involved as a Returning Officer in the Election and was not available for the purpose of filing of this Revision petitions could be filed. In the limitation petitions details had been given as to how the delay was caused. Definitely some laches were there in movement of the file but the main ground was intervention of the Election in between which caused further delay in getting the revision petitions filed as the Land Acquisition Officer was not found discharging his duties as Land Acquisition Officer during the period of election. It can very well be inferred that during the Election period after notification is being made, the State Officials that too, who become the Returning Officers of District Election Officers become so busy in the Election matters that their presence for ordinary discharge of their duties cannot be available. Hence these are found to be sufficient grounds in filing of the revision petitions at a belated date. Hence these are found to be sufficient grounds in filing of the revision petitions at a belated date. Moreover, none of those grounds as taken in the condonation petition has been controverted from the side of the opposite parties. 12. In that view of the matter, when sufficient grounds have been given for condonation of delay and when the matter relates to heavy pressure on the exchequer of the State, I feel these are the fit cases where the condonation prayer should be allowed and I accordingly do so. 13. Now coming to the merit of these revision petitions, from the admitted position, as stated above, the allowance of petition under Sec. 151/152 of the C.P.C regarding correction/modification of the decree was made after the decree was satisfied in the year 1982. 14. On the first point, when decree has already been satisfied then the decree remains an extinct one and it has got no existence in the eye of law. When a document or a decree has got no existence in the eye of law, its correction or modification does not arise at all. In this connection, reference may be made to A. Palanivel Chettiar V/s. R. Elumali AIR 1985 Madras 303. After consideration of the Division Bench judgments of this Court and of other High Courts, the Single Bench of the Madras High Court came to the finding that when there is not existence of decree in the eye of law after the same has been satisfied, there remains no scope of entertaining any petition under Section 151/152 of the C.P.C. for correction of clerical errors. Here, in the present case, question of clerical error does not arise. Only by the principle of law enunciated by the Apex Court regarding enhancement of interest and solatium, the learned L.A. Court had entertained the petitions under Sec. 151/152 C.P.C. without considering the fact that the decree had already been satisfied. 15. Here, in the present case, question of clerical error does not arise. Only by the principle of law enunciated by the Apex Court regarding enhancement of interest and solatium, the learned L.A. Court had entertained the petitions under Sec. 151/152 C.P.C. without considering the fact that the decree had already been satisfied. 15. It is true that the petitioner- judgment debtor was also heard at the time of allowing the petition under Sec. 151/152 C.P.C. and the objection raised had not been entertained and against such allowance of the amendment of the decree, no revision petition has been filed by the State of Bihar, the judgment debtor, but by that alone whether they would be debarred from challenging the executability of the decree, when the decree if specifically stated in amended decree has got no validity in the eye of law. The answer definitely comes in the positive in favour of the judgment debtor-petitioner. A thing which has got no existence in the eye of law and a beneficiary tries to take advantage of that thing then the person aggrieved can challenge its nullity at any stage and that view has been taken by the Apex Court as reported in Union of India V/s. Swarn Singh and Ors. -- . The amended Act or Act 68 of 1984 came into force on 24.9.1984 but by the provisions under Sec. 32 of that Amended Act. It was held that the amendment regarding enhance meant of solatium and interest under the Amended Act will have a retrospective effect, if the award is made within the period from 30.4.1982 till 24.9.1984. the Award which was granted by the L.A. Judge in the year 1979 was challenged before the High Court and the said Appeals were dismissed summarily by the High Court on 6.8.1982. 16. It is the contention of Mr. R.N. Sahay, appearing for and on behalf of the Opposite Parties-Decree Holders that the said saving provisions of retrospective effect as per Amended Act of 1984 would definitely be applicable as the Award reached its finality on 6.8.1982 when the appeals had been summarily dismissed. 16. It is the contention of Mr. R.N. Sahay, appearing for and on behalf of the Opposite Parties-Decree Holders that the said saving provisions of retrospective effect as per Amended Act of 1984 would definitely be applicable as the Award reached its finality on 6.8.1982 when the appeals had been summarily dismissed. But, that summary dismissal may also be construed in other way because the decree which was appealed against had already been satisfied before the summary dismissal on 1.7.1982 and as such there was no existence of decree on 6.8.1982, rather the Award had reached its finality before the L.A. judge in the year 1979 itself i.e. 28.6. 1979. In that view of the matter, it cannot be said that there was applicability of 1985 SC 576 for the purpose of amendment of the decree under Sec. 151/152 of the C.P.C. That matter had again been clarified by distinguishing Bhag Singhs case (supra) in Union of India V/s. Raghubir Singh. 17. All these judgment are taken into consideration and the judgments passed afterwards by the Supreme Court in Union of India V/s. Swarn Singh and Ors. If in the appeal being preferred by the State of Bihar the decree holders-respondents had applied before the Appellate Court for the purpose of enhancement then there should have been a scope even after the decree being satisfied, but that was not done. After long delay of five years, this petition was filed for amendment of the decree, when the decree was not in existence because of its finality being reached in the year 1982 itself. The division Bench of the Supreme Court in 1996 (5) SCC (Supra) has categorically held in the following manner : In view of the fact that Reference Court itself has answer the reference and enhanced the compensation the decree as on that date was correctly drawn and became final. Reference Court or the High Court has not power or jurisdiction to entertain any application under Sec. 151/152 to correct any decree which has became final or to independently pass award enhancing the solatium and interest as amended by Act No. 68 of 1984. 18. In that case, the enhanced the award passed by the reference Court was confirmed on appeal by a Single Judge and on further appeal being preferred before the Division Bench, it had also confirmed the same. 18. In that case, the enhanced the award passed by the reference Court was confirmed on appeal by a Single Judge and on further appeal being preferred before the Division Bench, it had also confirmed the same. Then Special Leave petitions were filed before the Supreme Court which were also dismissed confirming the enhanced compensation granted by the L.A. Judge. Then long after six years, applications were filed under Sec. 151/152 C.P.C. before the High Court for award of enhanced solatium and interest under Sec. 23(2) and Proviso to Sec. 28 of the Amended Act 68 of 1984, the Punjab High Court allowed the application and when amendment applications were allowed, the Executing Court dismissed the said applications in the year 1993 holding that the execution of the alleged decree was not maintainable, but on revision, the High Court allowed and directed the execution of the enhanced solatium and interest. The Supreme Court held that such enhancement of the decree were nullity in the eye of law where the reasonings being given to the effect that the judgment and award passed by the L.A. Judge and confirmed upto the Supreme Court gave the benefit to the claimants to solatium and interest as was applicable on that date and the same became final, there was not scope of correcting the decree on the basis of the Amended Act on a later date when the decree itself had reached its finality. It was further held by the Apex Court, the order of correction of the decree by allowing enhancement of solatium and interest is without jurisdiction and hence a nullity and such amended decree being a nullity it can be challenged at any state and rightly the question has been raised during the execution proceedings, 19. Thus, the recent Supreme Court judgment, as discussed above, completely covers the present cases, rather in the present cases, the decrees themselves were not in existence at the time when the Amendment order was passed and such amendment is definitely a nullity and the same can be challenged at any stage. Hence on merit also, the learned Court below has reached into an incorrect finding. This proposition of non-existence of the decree in the eye of law on the date of amendment had not at all been considered by the learned Executing Court. Hence on merit also, the learned Court below has reached into an incorrect finding. This proposition of non-existence of the decree in the eye of law on the date of amendment had not at all been considered by the learned Executing Court. It has also not been considered that once decree being satisfied and dismissed then the whole dispute comes to an extinct and the same cannot be reopened by applying provisions of Sec. 151/152 C.P.C. which allows only for correction of arithmetical error or typing mistakes. 20. The next point has been dealt in the impugned order with regard to the limitation of the petition under Sec. 47 of the C.P.C. It is now a settled principle of law that omnibus Article 133 of the Limitation Act is applicable in a petition under Sec. 47 of the C.P.C. in that view of the matter, it is contended that the said period should be construed from the date when the first notice under Order XXI Rule 22 C.P.C. had been received by the judgment debtor and when the petition under Sec. 47 C.P.C. had not been filed within three years the same is barred by limitation. 21. This proposition is not correct on the face of it. In the present case, the decree itself is a nullity. Its execution is barred by law as the decree had been passed without jurisdiction, hence the time factor is of no question. Moreover, the objections were raised under Order XXI Rule 23 C.P.C. on various grounds about the satisfaction of the earlier decree. But, that point had not been considered by the learned Court below. It that point would have been considered in the petition filed under Order XXI Rule 23 C.P.C. then perhaps judgment debtor ought not to have any objection to be filed under Section C.P.C. Moreover, when the decree itself is a nullity, its execution is also without jurisdiction and hence the same can be raised at any time to bring it to the notice of the Court. Time factor is of no bearing in the present case. 22. Hence, on all points, I find that the learned Court below has committed error of law and also jurisdictional error in allowing a null and void decree to be executed against the State of Bihar. Time factor is of no bearing in the present case. 22. Hence, on all points, I find that the learned Court below has committed error of law and also jurisdictional error in allowing a null and void decree to be executed against the State of Bihar. The challenge not being made about the Amended decree before the Higher Court would not create a bar to the judgment to raise the point before the Executing Court, because the Executing Court is the best Court to apply its mind whether the decree is executable or not. When the decree itself is in executable being a null and void one, the objection being taken in the execution proceedings cannot be questioned. 23. Thus, the Revision petitions are hereby allowed. The impugned orders passed, are hereby set aside and it is held that the Amended decrees which have been levied for executions were null and void and as such in executable.