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Jayakrishna Mangaraj Mohapatra Vs. State of Orissa and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberM.J.C. No. 241 of 1974
Judge
Reported inAIR1976Ori203
ActsCode of Civil Procedure (CPC) , 1908 - Sections 152; Land Acquisition Act - Sections 28
AppellantJayakrishna Mangaraj Mohapatra
RespondentState of Orissa and anr.
Appellant AdvocateS. Misra, Adv. No. 2
Respondent AdvocateB.B. Mohanty, Addl. Govt. Adv.
DispositionPetition allowed
Excerpt:
.....in the court below the petitioner has filed the present application under sections 151 and 152, civil procedure code in the court for statutory interest which according to him amounts to rs. that this court, while dismissing the first appeal, should have granted statutory interest to the petitioner and that the statutory interest being an integral part of the decree to be passed by this court, failure to grant the same to the petitioner in the decree is an accidental error which has crept into the decree of this court. misra are well founded. it is, no doubt, well established that the statutory interest provided under section 28 of the land acquisition act is an integral part of the decree to be passed by the court and the court, while determining compensation under the act, has to..........of land acquisition act. the petitioner thereafter instead of filing a petition under section 152, civil procedure code filed an application under section 47 of the said code before the learned subordinate judge praying that his judgment and decree be reviewed and the petitioner be granted statutory interest. this review petition was dismissed on 12-2-1966. in the meantime, the opposite parties had filed f. a. no. 70 of 1965 against the judgment and decree of the learned subordinate judge in misc. case no. 10 of 1964 in this court. this first appeal was dismissed on 9-2-1971. the decree passed by this court in the said first appeal also did not grant statutory interest to the petitioner. the petitioner thereafter instead of filing an application under section 152, civil procedure code in.....
Judgment:

B.K. Ray, J.

1. An area of 2.00acres in Sahid Nagar at Bhubaneswar belonging to the petitioner was acquired for development of the New Capital and possession of the land was taken by the opposite parties on 20-6-1963. The Collector under the award granted Rs. 18,400/-as compensation to the petitioner for the land acquired. At the instance of the petitioner who was not satisfied with the award on the ground that the compensation fixed by the Collector was too low a reference was made to the Court for determination of the real compensation.This reference was numbered as Misc. Case No. 10 of 1964 (C. A.) in the Court of the Subordinate Judge, Bhubaneswar. The learned Subordinate Judge on 20-2-1965 under his judgment and decree fixed the compensation at Rs. 36,800/- and directed payment of solatium at the rate of 15 per cent on the compensation amount fixed in the aforesaid miscellaneous case. He, however, did not award statutory interest at the rate of 6 per cent per annum from the date of dispossession till payment as provided under Section 28 of Land Acquisition Act. The petitioner thereafter instead of filing a petition under Section 152, Civil Procedure Code filed an application under Section 47 of the said Code before the learned Subordinate Judge praying that his judgment and decree be reviewed and the petitioner be granted statutory interest. This review petition was dismissed on 12-2-1966. In the meantime, the opposite parties had filed F. A. No. 70 of 1965 against the judgment and decree of the learned Subordinate Judge in Misc. Case No. 10 of 1964 in this Court. This first appeal was dismissed on 9-2-1971. The decree passed by this Court in the said first appeal also did not grant statutory interest to the petitioner. The petitioner thereafter instead of filing an application under Section 152, Civil Procedure Code in this Court filed an application under the said section in the Court of the Subordinate Judge, Bhubaneswar on 20-4-1974. While the review application was pending disposal before the learned Subordinate Judge, opposite parties paid the entire compensation together with solatium determined by the Court on 31-5-1974. On 20-9-1974 the learned Subordinate Judge dismissed the application under Section 152, Civil Procedure Code on the ground that the petitioner did not file a cross-objection for statutory interest after receipt of the notice in the aforesaid first appeal and that the petitioner did not carry a revision to this Court against the order of the learned Subordinate Judge dismissing the petitioner's previous application for review. Having thus failed in the Court below the petitioner has filed the present application under Sections 151 and 152, Civil Procedure Code in the Court for statutory interest which according to him amounts to Rs. 12,080/-.

2. Mr. S. Misra-2, learned Counsel for the petitioner, urges that after dismissal of F. A. No. 70 of 1965 the decree of the learned Subordinate Judge, Bhu-baneswar in Misc. Case No. 10 of 1964 merged in the decree of this Court; that this Court, while dismissing the first appeal, should have granted statutory interest to the petitioner and that the statutory interest being an integral part of the decree to be passed by this Court, failure to grant the same to the petitioner in the decree is an accidental error which has crept into the decree of this Court. So, according to Mr. Misra, this Court can rectify the mistake in exercise of its power under Section 152, Civil Procedure Code. It is further argued by him that there being no time limit for filing an application under Section 152, Civil Procedure Code the petitioner's application should be entertained. All these contentions of Mr. Misra are well founded. It is, no doubt, well established that the statutory interest provided under Section 28 of the Land Acquisition Act is an integral part of the decree to be passed by the Court and the Court, while determining compensation under the Act, has to award the same. It is equally well settled that an omission to award statutory interest is an error which can be cured by the Court in exercise of its power under S, 152, Civil Procedure Code; that for an application under Section 152, Civil Procedure Code there is no period of limitation prescribed under the law and that unless a third party has acquired an interest in the decree without knowing that there is an accidental slip or omission in it such accidental slip or omission can be rectified under Section 152, Civil P. C. But the present case has some peculiar features which, in our opinion, should not be lost sight of while disposing of the application in the light of the settled position of law indicated above. After the judgment and decree were passed by the learned Subordinate Judge, Bhubaneswar in Misc. Case No. 10 of 1964 the petitioner knew of the omission about which he now complains before us. It was, therefore, open to him to invoke the powers of the learned Subordinate Judge under Section 152, Civil Procedure Code by a properly constituted petition for supplying the omission. Instead of doing so, he filed an application under Section 47, Civil Procedure Code before the learned Subordinate Judge which was dismissed on 12-2-1966. At that time, the first appeal preferred by the opposite parties against the judgment and decree of the learned Subordinate Judge was pending in thisCourt in which the petitioner had enteredappearance. Even then, he did not bringto the notice of this Court at the time of hearing of the first appeal about the omission in the judgment and decree of the learned Subordinate Judge and remained satisfied when the first appeal was dismissed on contest on 9-2-1971. Thereafter, the decree of the learned Subordinate Judge merged in the decree passed by this Court in the said first appeal. This position also is not disputed by Mr. Misra. In spite of this, the petitioner did not move this Court under Section 152, Civil Procedure Code for the statutory interest and in its stead filed an application under Section 152, Civil Procedure Code before the learned Subordinate Judge, Bhubaneswar knowing fully well that the decree passed by the learned Subordinate Judge had merged in the decree of this Court and that the learned Subordinate Judge had no power to correct the decree. It was only when the petitioner's application under Section 152, Civil Procedure Code was dismissed by the learned Subordinate Judge on 20-9-1974 the petitioner came to this Court with the present application. This being the state of things, we are of the view that the petitioner is guilty of gross negligence and laches, but in view of the position of law regarding statutory interest and the Court's power under Section 152, Civil Procedure Code, we do not think it proper to dismiss the petition, and so, while allowing the petition, we think that in the interest of justice the petitioner should be saddled with costs for causing unnecessary harassment to the opposite parties from 12-2-1966 when the petitioner filed the review application before the learned Subordinate Judge till today. Therefore, while holding that the petitioner is entitled to statutory interest at the rate of 6 per cent per annum on the additional compensation awarded by the learned Subordinate Judge. Bhubaneswar in Misc. Case No. 10 of 1964 from the date of dispossession till the date of payment, we direct payment of costs by him as mentioned below.

3. Accordingly, the petition is allowed and the decree in F. A. No. 70 of 1965 be corrected as indicated above. The petitioner, however, shall be liable to pay Rs. 250/- as costs to the opposite parses within a month hence, failing which, it shall be open to the opposite parties to realise the same by levying execution.

Misra, J.

4. I agree.


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