D. K. SETH, J. ( 1 ) TWO applications for recalling certain orders passed in connection with the above appeal is the subject matter of decision. Civil Misc. Application No. 9460 of 1997 filed oft 4. 2. 1997 by the appellant contains a prayer for recalling the order dated 16. 8. 1996 passed by Honble S. C. Verma. J. and the order dated 19. 12. 1996 passed by honble Alok Chakkraborty, J. together with a prayer for stay of operation of the judgment and decree dated 24. 11. 1994 passed by the learned District Judge, Bulandhshahr in L. A. Ref. No. 162 of 1992 appealed against. The other application being Civil Misc. Application No. 28319 of 1997 filed on 22. 4. 1997 seeks recalling of an order dated 6. 2. 1-997 passed by this Court. Mr. Sunil Ambwani appearing for tlie appellant and Mr. L. C. Srivastava appearing for the respondent No. 1 addressed the Court on the said applications at length. ( 2 ) IN order to appreciate the situation, it is necessary to refer to the brief facts and the backgrounds out of which the present controversy addressed by the counsel of either of the parties had arisen. ( 3 ) THE appellant is a "company promoted by the Central Government holding 76 percent of the equity shares for indigenous production of Oral Polio vaccine as a Government of India Undertaking under the National immunisation programme considered of an extreme national urgency. For housing, the project of the Company, Land Acquisition Act was resorted to for acquiring the desired land. Notification under Section 4 (1) for acquiring 16 Bighas (10 acres) land was issued on 21. 11. 1988 followed by a Notification under section 6 (1) read with Section 17 of the Act published on 16. 2. 1989, pursuant to which possession was taken on 1. 6. 1989. The Special Land Acquisition Officer published its award on 24. 3. 1990 fixing compensation at the rate of 69,417. 39 per Bigha. The respondent No. 1 received compensation under the said award in respect of plot No. 173 measuring about 18 Biswa 4 Biswansi. The Appeal no. L. A. Ref. No. 162 of 1992 under Section 18 of the said Act filed by the respondent No. 1 was allowed by the learned District Judge, bulandshahr on 16th August. 39 per Bigha. The respondent No. 1 received compensation under the said award in respect of plot No. 173 measuring about 18 Biswa 4 Biswansi. The Appeal no. L. A. Ref. No. 162 of 1992 under Section 18 of the said Act filed by the respondent No. 1 was allowed by the learned District Judge, bulandshahr on 16th August. 1994 enhancing the compensation by 13 times namely at a rate of Rs. 325/- per sq. yard which calculates at Rs. 8,94,643. 75 per Bigha. First appeal No. 127 of 1995 was filed by the appellant against the said judgment and decree dated 16. 8. 1994. It is alleged that albngwith the appeal an application for was also filed. The appeal having been filed without sufficient Court fees, the stay application was dismissed. Thereafter, sufficient Court fees having been paid appeal was registered thereupon a stay application was filed. While admitting the appeal on 28. 3. 1995, an interim order was issued staying realisation of the enhanced amount provided the appellant deposits half of the enhanced amount within two months from the date of the said order and remaining half within six months thereafter. In default the order of stay would stand automatically vacated. The appellant did not deposit any of the amount. A fresh application was filed on 17. 7. 1995 with better particulars pointing out the entire amount of the award passed by the Special Land Acquisition officer being 18,00,ooo/- was deposited by the appellant and the same has. accordingly. been withdrawn by the respondent No. 1 and had also pointed out the aims and objects of the Company as well as its financial condition and the grounds on which the judgment and decree was challenged. By an order dated 20. 7. 1997, the operation of the award was stayed unconditionally. After counter affidavits were filed, by an order dated 16. 8,1996 passed by Honble S. C. Verma, J. the operation of the award was stayed subject to depositing one-fourth (1/4) of the decretal amount by the appellant within four months. On 19. 12. 1996, an application for extension of the said time was filed. On the said application two months time was granted by any order dated 19. 12. 1996 passed by Honble Alok chakkraborty, J. These two orders dated 16. 8. 1996 and 19. 12. On 19. 12. 1996, an application for extension of the said time was filed. On the said application two months time was granted by any order dated 19. 12. 1996 passed by Honble Alok chakkraborty, J. These two orders dated 16. 8. 1996 and 19. 12. 1996 have been sought to be recalled by means of the present application no. 9460 of 1997 filed on 4. 1. 1997 alongwith a prayer for stay of operation of the judgment and decree dated 24. 11. 1994. This application was placed before this Court OP 6. 2,1997, on which by order dated 19. 12. 1996 was extended till the date of listing. The respondent No. 1, by means of Application no. 28319 of 1997 filed on 22. 4. 1997 sought for recalling of this order dated 6. 2. 1997. Thus, how the two applications arise. ( 4 ) BOTH the applications having been taken up together and the both counsels having addressed on the merits of the case in support and against the grant of stay, it would be desirable to decide both the applications simultaneously alongwith the application for stay itself. ( 5 ) MR. Sunil Ambwani, learned Counsel for the appellant pointed out from the impugned judgment and decree that the same is wholly baseless while relying on the award he pointed out that the same was wholly justified and reasonable He also laid great stress on the object of the Company and its financial condition. He vehemently argued that the project is the only one and the first of its kind in Asia. This has been undertaken for immunisation under the National Health scheme and the products would be wholly utilised by the Health Department of the government of India for such purposes and the products would never be applied for commercial application. He contends that there is no basis of enhancing the compensation at 13 times having regard to the area in which the land is situated. He has also pointed out from the appellate order that the necessary ingredients due to which said enhancement could be effected are thoroughly absent. He also contends that in cases when big chunk of land is acquired the Apex Court has deprecated calculation of compensation on the basis of sq. yard and has cited a few decision too which shall be referred to at appropriate time. ( 6 ) MR. He also contends that in cases when big chunk of land is acquired the Apex Court has deprecated calculation of compensation on the basis of sq. yard and has cited a few decision too which shall be referred to at appropriate time. ( 6 ) MR. L. C. Srivastava, learned counsel for the respondent Np. 1, on the other hand, contends that the first application for stay having been rejected) second application for stay is not maintainable and is barred by res judicata or principles analoguous thereto. Therefore, no order could be passed on the stay application. It is liable to be dismissed. Alternatively he contends that after having obtained the order dated 28. 3. 1995 while admitting the appeal no fresh application could have been made and a fresh order could not have been obtained on the said application. It would be a third application which by no means could be maintainable. Next he contends that after having obtained the order dated 16. 8. 1996 on a contested hearing, there is no escape from the said order. He then contends that since the appellant had obtained extension of time by means of an order on 19. 12. 1996, it is estopped from challenging the said order or from seeking recalling thereto. Therefore, according to him this application for recalling the two orders dated 10. 8. 1996 and 19. 12. 1996 is wholly mis-conceived and cannot be maintained. Apart from the above points and technicalities Mr. Srivastava has also argued that in view of the order 41, Rules 1 (3), 5 (3) and 5 (5 ). the decree being a money decree no stay order can be granted unless the appellant secures the said amount. Therefore, according to him, the appellant is bound to deposit the whole of the amount in terms of the order dated 28. 3. 1995. He contends further that since injunction is being heard finally, the said order dated 28. 3. 1995 should be revived and it is not necessary to pass any order on the question of recalling of the said order. ( 7 ) MR. Ambwani in reply contends that principle of res judicata does not apply in case of an application for stay or injunction if further or better materials and particulars are disclosed or on some new grounds stay or injunction is asked for. According to him. ( 7 ) MR. Ambwani in reply contends that principle of res judicata does not apply in case of an application for stay or injunction if further or better materials and particulars are disclosed or on some new grounds stay or injunction is asked for. According to him. the first application having been rejected before the appeal was admitted on the ground that sufficient Court fee was not paid and that too without deciding any issues, the principles of res judicata cannot be applied. So far as the third application is concerned, according to him, it was not a fresh application but was an application in connection with the stay or injunction application itself seeking to introduce fresh and further materials in order to enable the Court to pass appropriate orders then he contends that the direction to deposit or furnish security is a discretion of the court, the said provisions is not mandatory leaving the Court with no option. ( 8 ) SINCE the application for recalling the orders dated 16. 8. 1996 and 19. 12. 1996 was being taken up it was not necessary to deal with the application for recalling the order dated 6. 2. 1997 separately. At the same time on the suggestions of both the learned counsels, the application for stay injunction itself was also taken up for hearing and both the counsels had addressed, in favour and against the respective merits of the case. While Mr. Ambwani supported grant of stay or injunction and Mr. Srivastava contended that it should be granted, with a direction to deposit the entire enhanced amount. ( 9 ) IN the background of this case to my mind it appears that it would serve no purpose by allowing the proceedings to go on and on so far as it relates to a stay or injunction. The stay or injunction application as such itself may be decided and disposed of as has been insisted by both the learned counsel in course of hearing. Accordingly, by consent of both the. learned counsels, the application for injunction is being taken up. ( 10 ) I have heard both Mr. Sunil Ambwani and Mr. L. C. Srivastava at length. The stay or injunction application as such itself may be decided and disposed of as has been insisted by both the learned counsel in course of hearing. Accordingly, by consent of both the. learned counsels, the application for injunction is being taken up. ( 10 ) I have heard both Mr. Sunil Ambwani and Mr. L. C. Srivastava at length. Since the stay or injunction application itself is being taken up for final disposal by the consent of the parties, in my view, it is not necessary to go into the question of recalling the respective three orders mentioned in the said two applications. In my view, the decision on the stay or injunction application will govern the said two applications or in other words, the outcome of the stay or injunction application would decide the fate of the said two applications. ( 11 ) THE learned counsel for the respondents contends relying on the decision in the case of new Okhla Industrial Development authority v. Mohendra Singh and Ors. that the present appeal having been preferred against the money decree it is incumbent upon, the appellant to deposit the entire decretal amount. According to him in view of the said judgment it is incumbent upon the appellant to deposit whole of the decretal amount. Therefore, he makes further prayer that the appellant should deposit the balance amount as well. He further submits that the respondents may be directed to furnish security for the purposes of withdrawing the said amount. ( 12 ) THE said judgment has laid down a principle, on which normally the stay of execution is to be granted or refused in terms of order 41, Rule 5 of the Code of Civil Procedure. In the ratio decided in the said case the discretion of the Court has been recognised. It has never laid down by way of absolute proposition that in each and every case where appeal is preferred against money decree, the court is bound to direct deposit of whole of the decretal amount and that appeal will not be maintainable unless such amount is deposited. Then again Order41 Rule 1, Sub-rule (3)provides that the appellate Court may allow the appellant to deposit decretal amount in appeal against the money decree or to furnish such security, as the Court may think fit. Then again Order41 Rule 1, Sub-rule (3)provides that the appellate Court may allow the appellant to deposit decretal amount in appeal against the money decree or to furnish such security, as the Court may think fit. The said question was also referred to in the judgment cited by learned counsel for the respondents. In the said case reference was made to the case of Central Bank of India v. State of Gujarat, wherein it was held that the high Court can in its discretion either direct for payment of the amount to the decree holder subject to such terms for safeguarding the interest of decree holder vis-a-vis the judgment-debtor or direct the amount to be deposited or invested in term of deposit of interest so that on disposal of the First Appeal appropriate direction could be given. Thus, it is abundantly clear that it is according to the discretion of the Court, having regard to the facts and circumstances of the case, suitable order to be passed. No absolute proposition or forumala can be laid down. It depends on the facts and circumstances of each individual case. ( 13 ) IN the facts and circumstances of the case it appears that the amount is payable to the respondents by the appellant, which is a part of the State. It cannot be said that the amount at the hands of the defendant-appellant is insecured, so far as the respondents are concerned. It cannot be said that in case the appeal fails the respondents cannot recover the amount from the defendant-appellant. The responsibility of payment of the appellant it also supported by the State. The provision of Order 41. Rule 1 (3) of the Code of Civil procedure was incorporated to secure and safeguard the interest of the decree holder, having regard to safeguarding the interest of the judgment-debtor as well, as has been laid down in the case of Central Bank of India v. State of Gujarat (supra ). Having regard to the facts and circumstances of the present case it cannot be said that the money payable by the appellant is insecured so far as the respondent is concerned. ( 14 ) THE learned counsel for the respondents insists that in case the entire amount is not directed to be deposited in that event appellant should furnish adequate security as provided in Order 41. ( 14 ) THE learned counsel for the respondents insists that in case the entire amount is not directed to be deposited in that event appellant should furnish adequate security as provided in Order 41. Rule (3) of the Code of civil Procedure, learned counsel opposes the said prayer and contends that by reasons of order 27, Rule 8-A the appellant is not required to furnish security in terms of Order 41, Rule 5 of the" Code. ( 15 ) ORDER 41. Rule 1 (3) requires the appellant to deposit decretal amount or furnish security in respect thereof as the Court may direct, according to its discretion. Such direction or deposit is not dependent on the question of grant of stay. The same is general proposition. Such order can be passed even when no prayer for stay is asked for or even when stay is being refused. Whereas Order 41, Rule 5 is dependent on the question of stay. But, however, the Court may impose a condition of compliance of Rule 1 (3) of Order 41 when considering the question of grant of stay or granting such stay. Order 41. Rule 5 (5)makes the situation clear where it provides that in case the appellant fails to make deposit or furnish security, if ordered by the Court. the execution of the decree shall not be stayed. Sub-rule (5) of Rule 5 stands substituted by means of Allahabad Amendment vide Notification dated 3. 10. 1993 as published on 1. 1. 1994 providing :"notwithstanding anything contained in the foregoing sub-rules where the appeal is against a decree for payment of money, the appellate Court shall not make an order staying the execution of the decree, unless 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 appellate Court may think fit. "notification no. 552/vii-d. 134 dated 3. 10. 1993 published in. U. P. Gazettee, Part 2. datd 1. 1. 1994. . According to the said provision the appellant is not entitled to any order of stay unless he deposits the disputed amount of furnished security in respect thereof as the Court may direct. Therefore, independent of Rule 1 (3) by reason of Allahabad Amendment the court may direct deposit of furnishing of security in terms of Order 41, Rule. 5 (5) of the rules. Therefore, independent of Rule 1 (3) by reason of Allahabad Amendment the court may direct deposit of furnishing of security in terms of Order 41, Rule. 5 (5) of the rules. ( 16 ) THE Order 27 covering the suit by on against the Government or Public Officer in their official capacity in Rule 8-A provides as under"8-A. No security fo be required from government or a Public Officer in certain cases : no such security as is mentioned in rules 5 and 6 of Order XLI shall be required from the Government or where the Government has undertaken the defence of the suit from any public officer sued in respect of an act alleged to be done by him in his official capacity. "order 27, Rule 8-A above exempts the Government from furnishing any security as mentioned in Rules 5 and 6 of Order 41. Even without Allahabad Amendment for the purposes of consideration of grant of stay, the state Government may not be required to furnish security. But the said provision does not provide that the State Government would be required to deposit decretal amount. So far as the deposit of the decretal amount is concerned, there being no exemption the Government stands on the same footing as ordinary litigant while preferring appeal. In such event it is discretion of the Court. The Court may direct the deposit of whole or part of the decretal amount or the disputed amount in its discretion. Similarly, while exercising such discretion the Court is free even not to direct deposit of any of the amount or part thereof. But; however, such discretion is judicious one, having regard to the facts and circumstances of the case. There cannot be any strait-jacket formula. It depends on facts and circumstances of each case, in which the Court would exercise its discretion and in what manner and how. Thus, it appears that the Government is not required to furnish security in view of the exemption provided in Order 27, Rule 8-A. The learned counsel for the respondents contends that the appellant is not a Government. The appellant is a body corporate. Accordingly, it is a different entity and juristic person having different identity from the Government. Therefore, according to him Rule 8-A. Order 27 of the Code is not attracted in the present case. Learned counsel for the appellant, mr. The appellant is a body corporate. Accordingly, it is a different entity and juristic person having different identity from the Government. Therefore, according to him Rule 8-A. Order 27 of the Code is not attracted in the present case. Learned counsel for the appellant, mr. Ambwani, on the other hand, contends that the appellant is a part of the Government. According to him the land acquisition was undertaken by the Government. The said action is under question in the present appeal. The appellant has undertaken is defending the Government cause. Therefore, according to him Rule 8-A applies with full force. ( 17 ) THE Government by reason of present administrative setup emcompasses and covers wide field. In implementation of different government policies the Government had extended itself into different implementing agencies. In its wisdom the Government had thought fit to undertake exercise for implementation of some of its policies through different bodies. There is no doubt about the fact as obtained in the present case where the appellant is an agency of Government itself dealing with implementation of the policy which is controlled and monitored by the government itself and the entire funds are also provided by the Government. This fact has not been disputed by the learned counsel for the respondent. Admittedly pursuant to the Government policy land is acquired by the government and is being handed over to the appellant for implementation of the Government policy with regard to housing the particular project. The proceeding which has been challenged is a land acquisition proceeding. The appellant cannot independently acquire land. The land is acquired by the Government. It is an acquisition proceeding undertaken by the Government which is under challenge. There is ad-idem of identity of interest. The land is acquired by the Government, compensation is payable by the Government, may be fund provided to the appellant would be utilised for such payment. Such a situation does not make the appellant a different entity from that of the Government. It is interest of the Government that is being defended. The use of the expression in Rule 8-a "where the Government has undertaken defence" indicates that it is the interest of the government which is the guiding factor for determining the applicability of Rule 8-A. In the present case even if the fund is payable by the appellant, it is a Government who would be making payment. The use of the expression in Rule 8-a "where the Government has undertaken defence" indicates that it is the interest of the government which is the guiding factor for determining the applicability of Rule 8-A. In the present case even if the fund is payable by the appellant, it is a Government who would be making payment. The appellant has been given right by reason of Section 50 (2) of the land Acquisition Act permitting the beneficiary for whom the land is acquired,to appear and adduce evidence for the purpose of determining the amount of compensation either before the Collector or before the Court though it may not. Such beneficiary even if precluded from demanding reference having given right to contest the reference may prefer appeal since the appeal as provided in Section 54 is made subject to Code of Civil Procedure while, proceeding undertaken by the Court in reference under Section 18 is a proceeding under the Code of Civil Procedure by reason of section 53. Section 96 of the Code of Civil procedure provides the appeal as of right. The right of appeal is a right given to the parties in the proceeding or whoever may be aggrieved by the decree. ( 18 ) IN the present, case it is the right of the Government which is being seconded by the beneficiary namely the appellant by reason of the right reserved under Section 50 (2 ). Therefore, the appeal in a proceeding under land Acquisition Act, preferred by the beneficiary is in effect an appeal by the Government, since it is the liability of the Government to make payment though the fund may be provided by the beneficiary but still then the same is payable through the Government. It is the Government who would be responsible or failure to pay and the award would be executable against the Government though equally against the beneficiary. Because of the special Scheme of the Land Acquisition Act interest of the Government and the beneficiary cannot be separated. There being adidem of identity of interest, by no stretch of imagination, the present case cannot be said to exclude application of Order 27, Rule 8-A of the Code. Thus, it is in view of Rule 8-A, Order 27 of the Code the Government is exempted from being required to furnish security. There being adidem of identity of interest, by no stretch of imagination, the present case cannot be said to exclude application of Order 27, Rule 8-A of the Code. Thus, it is in view of Rule 8-A, Order 27 of the Code the Government is exempted from being required to furnish security. The contention of the learned counsel for the respondent cannot be acceded to. ( 19 ) NOW, on the question of merit of the case, it appears that the appellate Court had proceeded on the basis that the acquired land had commercial and residential potentiality and that it is surrounded by G. T. Road and bulandshahr and Babupura roads and that there are hotels, petrol pump, schools, inspection house etc. adjacent to the land. therefore, he had observed "on these facts, the statement of P. W. 1 is un-controverted is to believed, if compensation @ Rs. 325/- per sq. yard as a whole is awarded to the claimant alongwith other benefits, it would be sufficient, just and fair I have gone through the judgment and decree appealed against dealing , with the issue No. 1 and. 4 relating to the justification of the award and the compensation. It appears that the appellate Court has not discussed anything with regard to the award passed by the Special Land Acquisition officer. He. has not discarded any of the grounds supporting the award under appeal. He had suddenly jumped into the conclusion without referring to. anything else. The decision that a sum of Rs. 325/- would be just and fair is not supported by. any reason. It is not possible to find out what could be the reason for enhancing the compensation by 13 times. Then again this has been arrived at on the basis of presumption that the land had protentiality to become something in future. Potentiality is not a question to be gone into in dealing with the question of determining compensation. How the compensation is to be calculated has been mentioned -in the Act itself under Sections 23 and 24 of the said act. Section 23 prescribes the considerations to be taken into account for determining the compensation while Section 24 prescribes the matters which, shall not be taken into consideration. The appellate Court has not addressed itself to any of these considerations. Section 23 prescribes the considerations to be taken into account for determining the compensation while Section 24 prescribes the matters which, shall not be taken into consideration. The appellate Court has not addressed itself to any of these considerations. The manner in which the appellate Court had jumped to the conclusion appears to be a height of arbitrary exercise of caprice and whims. In the present case a sum of Rs. 18,00,000/- as awarded has already been deposited by the appellant and the same has already been withdrawn by the respondent no. 1. Having regard to these facts and as I have observed earlier, this is a fit case when the Court should exercise its discretion in favour of the appellant. Particularly in view of the fact that if the appellant is directed to deposit those extra ordinary enhanced rate of compensation, in that event, the project will never see the light of the day. Only to secure the interest of one individual, that too in a situation obtaining in the present case would be against the interest of the whole nation if by reasons of this order, the project is compelled to undergo financial death and thereby ruining the project into a stillborn one. The court has to strike a balance. Pitted against the interest of the whole nation, the individual right even though secured by law not be granted provided the Court had little amount of discretion. These are the considerations which should weigh with the Court while exercising discretion. The discretion of the court is not an absolute but a judicious one. A judicious discretion requires the Court to act judicially and ensure justice between the parties. In the present case, if an order in terms of Order 41, Rules 1 (B), 5 (3) and5 (5)is to be adhered to in that event, it would enact the ultimate scene of Merchant of Venis. namely, the respondents would be asking for a "pound of flesh of the appellant resulting into its death altogether, and a death affecting the whole nation. The value of project may result into the death or serious handicappedness of children, the future citizens of the nation and thereby ensuring crippling of a nation as a whole if not for a sizeable portion. The value of project may result into the death or serious handicappedness of children, the future citizens of the nation and thereby ensuring crippling of a nation as a whole if not for a sizeable portion. ( 20 ) FOR all these reasons as observed earlier, I am inclined to and am exercising my discretion in favour of the appellant and direct stay of operation of the impugned judgment and decree dated 24. 11. 1994 till the disposal of the appeal. ( 21 ) SINCE I have decided the application for stay itself, it is not necessary to go into the other questions raised by the Counsels for the parties particularly in view of the fact that this is in reality the first application, though technically the second one, which is being decided. So far as the second one. which is being decided. So far as the question of resjudicata is concerned, the same does not. apply since the first application was not decided on merits and no issue was decided. ( 22 ) THE above order will govern all the applications made in connection with the stay or injunction matter and all of which stand disposed of by this order. ( 23 ) IT would be open to the respondent to apply for expeditious hearing of the appeal. However, it may be observed that the findings given above are tentative for the purpose of deciding the application for stay in injunction and shall be subject to the final determination in the appeal itself. Applications disposed of. .