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2002 DIGILAW 39 (JK)

Atiqa Bano v. Collector

2002-02-28

R.C.GANDHI

body2002
1. This revision Petition has been preferred against order dated 20th May, 2000 passed by the learned District Judge, Srinagar, whereby he has rejected the application of the petitioner-claimants seeking to correct the judgment and decree dated 6.4.1992 passed by that court in reference under section 18 of the Land Acquisition Act to the extent of granting 6% interest instead of 4% granted by the court. In proceedings under Land Acquisition act reference was made by the Collector to the learned District Judge, Srinagar, which was accepted and a decree came to be passed directing the respondents to pay compensation to the claimants with 15% Jabrana and 4% interest from 18th January, 1980 till realisation of the decree. This decree of the court was challenged by means of Civil Appeal NO.37/92 by the State through collector before this court. The petitioners also, not being satisfied with the decree, filed cross-objections to the appeal in terms of Order XLI Rule 22 CPC. The appeal came to be dismissed in default, so the cross-objections. The decree passed by the learned District Judge in reference proceedings thus attained finality. 2. The petitioners-claimants filed an application on 19th June, 1999 before the learned District Judge, Srinagar, for correction of the judgment and decree in terms of Section 152 of the Code of civil Procedure to the extent that interest - awarded should be 6% instead of 4% in terms of Section 28 of the Land Acquisition Act which provides payment of interest at the rate of 6%. The plea raised by the learned counsel before the learned District Judge was that the judgment is violative of the statutory provisions of law and thus needs correction. The learned District Judge on appreciation of the submission of the learned counsel for the petitioners vide order impugned rejected the application observing in the course of the order as under: - "The short point for consideration is whether any correction can be ordered in the rate of interest and Jabirana as granted in award dated 18.1.1980 and can be altered by the present applicant which has been made at a belated and delayed stage of nearly 20 years. On record it is shown that the petitioners were associated with the acquisition proceeding in the year 1980 and they received amount of compensation for their land acquired by the State. On record it is shown that the petitioners were associated with the acquisition proceeding in the year 1980 and they received amount of compensation for their land acquired by the State. The petitioners are also shown to have been continuously, associated with the proceedings before this court till the conclusion of the reference made vide order dated 6.4.1992. The petitioner in these circumstances are shown to have acquired the knowledge of an error or mistake in the rate of interest or Jabirana right from 1980. The petitioners have not challenged and approached the court at the earliest opportunity for correcting the error or mistake. The petitioners seem to have waited for twenty long years without submitting any explanation for the delay of twenty years. The petitioners aggrieved of the order of the learned District Judge have preferred this Revision Petition on the same grounds. In Support of their claim, the petitioners have re lied upon the judgments reported in AIR 1976 Bombay 203 and AIR 1982 P&H 184 with a view to impress upon the court that the application can be filed at any time and there is no limitation period provided for seeking correction of the judgment and decree. 3. I have heard learned counsel for the parties and perused the record. 4. The judgment and decree of the learned District Judge was appealed against before this Court. The petitioners, respondents in appeal, also preferred cross-objections which were in the form of appeal, to be decided as an appeal, which is evident from the provision of law contained in 0.41, R.22 CPC which reads as under: "22 upon hearing respondent may object to decree as if he had preferred separate appeal. - (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court be behow in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objections in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. (2) Form of objection and provisions applicable thereto. - Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1 so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto." Opportunity was available to the petitioners while filing the cross-objections to raise a grievance regarding-correction of the decree setting up a ground in the cross-objections so as to bring it in tune with the mandate of law in terms of section 28 of the Land Acquisition Act. This ground has not been agitated in the cross- Objections which is evident from the perusal thereof Any ground not taken in the appeal which is available to the party is treated to be abandoned and cannot be reagitated. The petitioners have not exhibited any grievance against the decree of the learned District Judge in the cross-objections to this extent and this issue cannot be re-agitated by filing an application for correction of the decree. The law cited at the bar and relied upon by learned counsel for the petitioners is of no support to them because of the distinguishable facts and circumstances of this case. 5. Assuming that the petitioners would have approached the trial court within a reasonable time, even then they having not agitated the matter in their cross-objections, cannot re-agitate the matter by filling an application at a belated stage. The trial court, therefore, has not committed any error of jurisdiction or illegality in recording the finding in the course of the impugned order for rejection of the application. 6. This Revision Petition for the reasons recorded by the trial court, as observed above, is found without merit and is, accordingly, dismissed.