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PETITIONER: STATE OF RAJASTHAN & ORS.

       Vs.

RESPONDENT: RAJ SINGH & ANR. ETC.

DATE OF JUDGMENT:       08/07/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (7)   194        1996 SCALE  (5)688

ACT:

HEADNOTE:

JUDGMENT:                             WITH CIVIL APPEAL NO 9522 OF 1996 (Arising out of SLP (C) No.3626 of 1996)                          O R D E R IN C.A.9522/96 ( @ SLP (C) No.3626/96)      leave granted.      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 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  January  18,  1982 acquiring a total extent of 2570 bighas 15 biswas of land in village Desh, Tehsil Sanganer, Jaipur for public purpose. On reference,  the   land  Acquisition   Court  determined  the 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 been  filed along  with the memorandum of appeal and the court, therefore,  directed the  appellant  to  produce  the decree within  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  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

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civil court  to prepare  the decree  within four  weeks from that date  and to  supply the  same. Accordingly, decree was prepared by the civil 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 appeals by special leave.      It is  contended  by  Shri  Aruneshwar  Gupta,  learned counsel for  the State, 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  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 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.      Section 53 of the Act provides that:      "Save in  so far  as  they  may  be      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." Order 41, Rule 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      accompanies by  copy of  the decree      appealed  from   and   unless   the      Appellate Court 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, conclusively determines the rights of  the parties  with regard  to all  or any  of  the matters in  controversy  in  the  suit  and  may  be  either preliminary or  final. It  shall be  deemed to  include  the rejection of  a plaint and the determination of any question within Section 144, but shall not include... "      Section 54 of the Act gives right of appeal against the award passed 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) respectively, of the      Code of Civil Procedure, 1908.

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    It would  thus be  seen  that  an  appeal  filed  under Section 54  of the  Act shall be accompanied by a memorandum of  grounds   together  with  the  judgment  and  decree  as envisaged under  Order 41 Rule 1, 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 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 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  memorandum  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 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 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 within 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 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 impugned order is obviously illegal. The  learned single  Judge was  oblivion to and has 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. IN C.A.  9783  /95 (@ SLP (C) No.5670/95)           Leave granted.      Following the  decision rendered  in the  appeal above, this appeal is disposed of and the matter is remitted to the High Court.  The High  Court would dispose of this appeal on merits according to law. No costs.