Jagjit Singh, J.
(1) On September 7. 1972 Sri Chand presented an application under Order Xliv rule 1 of the Code of Civil Procedure, accompanied by a memorandum of appeal, for being allowed to appeal as a pauper against the order, dated July 20, 1972 made by Shri J.D. Jain, Additional District Judge, rejecting his claim for sharing the compensation awarded in respect of 2 Bighas and 18 bids was of land. Along with the said application another application (Civil Miscellaneous No. 723) was also submitted by him with a request that the operation of the order sought to be appealed against may be stayed pending disposal of the appeal.
(2) The application for being allowed to appeal as a pauper and the stay application were listed for September 11, 1972. On that date notice was ordered to be issued to the respondents and it was directed that if the amount of compensation had not already been withdrawn then out of the compensation awarded Rs. 23,160.20 shall not be with drawn pending further orders on the stay application unless security was furnised to the satisfaction of the Additional District Judge concerned for refund of the said amount in the event of the appeal being successful.
(3) After service of notice when the applications were put up on April 17, 1973 it was directed by us that the case be listed for May 3, 1973 for hearing the counsel for the applicant as required by rule 1 (2) of Order Xliv of the Code of Civil Procedure. On May 3, 1973 the applicant or his counsel did not appear. We, however, adjourned the case to May 14, 1973 to give another chance to the applicant or his counsel of appearing and of being heard. On the last mentioned date the counsel for the applicant and the counsel for Chander Kumar Vaish (respondent No. 1) appeared. Thereafter there were some adjournments at the request of the counsel.
(4) On behalf of the applicant it was urged by his learned counsel, Shri A. L. Patney, that issuing notice to the respondents tentamounted to recording a finding that the order sought to be appealed against was prima facie contrary to law or to some usage having the force of law or was otherwise unjust. If was, thereforee, contended that it is not open to us to re-consider the matter at this stage and to say that the order is prima facie not contrary to law or to any usage having the force of law and is otherwise not erroneous or unjust and on that ground to reject the application for being allowed to appeal as a pauper.
(5) Here it may be mentioned that along with some other land in the revenue estate of Jhilmil Tiharpur 2 Bighas and 18 bids was of land comprised in Khasra No. 790/5 was acquired by the Government for the planned development of Delhi. The Land Acquisition Collector gave his award, No. 8 of 1969, determining the compensation payable for the land which was acquired. As, however, there was a dispute regarding the apportionment of compensation in respect of the land of Khasra No. 790/5 a reference under section 30 of the Land Acquisition Act, 1894 was made by him.
(6) While Chander Kumar Vaish, who had become the owner of 2 Bighas and 18 bids was of land of Khasra No. 790/5 as a result of a gift in his favor by the original owner, Phool Chand, claimed the entire compensation, Sri Chand contended that eighty per cent of the compensation should be given to him as he had been in occupation of the land as an occupancy tenant under Phool Chand for a period of ten to twelve years. Shri J. D. Jain, Additional District Judge, after considering the evidence produced before him came to the conclusion that the claim set up by Sri Chand was not justified and he was not entitled to any compensation, whatsoever. On July 20, 1972 he, thereforee, ordered the entire amount of compensation received from the Land Acquisition Collector to be paid to Chander Kumar Vaish. It was, however, directed that the payment of the amount of compensation to Chander Kumar Vaish shall not be made for a period of one month so that Sri Chand may, if he so liked, file an appeal and obtain a stay order.
(7) An order under section 30 deciding the apportionment of compensation which was settled under section 11 is appealable as a decree, though not as an award under section 54 of the Land Acquisition Act. In T. B. Ramachandra Rao and another v. A. N. S. Ramchandra Rao and others A.I.R. 1922 PC 80 (1) it was held that the award as constituted by statute is nothing but an award which states the area of the land, the compensation to be allowed and the apportionment among the persons interested in the land of whose claims the Collector has information, meaning thereby people whose interests are not in dispute, but from the moment the sum has been deposited in court under section 31(2) the functions of the award cease; and all that is left is a dispute between interested people as to the extent of their interest and such a dispute forms no part of the award. As, however, the decision under section 30 is one on the rights of contending parties, it can be regarded as a decree and is, thereforee, appealable as such.
(8) Rule 1 of Order Xliv of the Code of Civil Procedure reads an under:-
'1.(1) Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper, subject, in all matters, including the presentation of such application, to the provisions relating to suits by paupers, in so far as those provisions are applicable.
(2)The Appellate Court, after fixing a day for hearing the applicant or his pleader and hearing him accordingly if he appears on that day, and upon a perusal of the application and of the judgment and decree appealed from, shall reject the application, unless it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust.'
(9) On the facts of the present case we are unable to agree with the learned counsel for the applicant that issuing the notice tentamounted to giving a finding that prima facie the order appealed from was contrary to law or to some usage having the force of law or was otherwise erroneous or unjust. The notice had been given as there was an application for stay on which ex-parte interim stay was granted on certain conditions and not after hearing the applicant or his counsel regarding the question as to whether the order could be regarded to be contrary to law or to some usage having the force of law or was otherwise erroneous or unjust.
(10) Shri Patney relied upon Abdul Majid Sk. Ibrahim v. Bhaurao Atmaram Patil : AIR1959Bom67 , (2); Mohd. Abdul Azeem v. Syed Miram : AIR1961AP65 , Krishna Bhatta v. Ananta Bhatta : AIR1961Ker309 ; (4) and Kanni v. Vishwanatha Chettiar and others : AIR1968Mad390 . These cases do support the contention of the learned counsel for the applicant. The Madras High Court in the case of Kanni (supra) took the view that the fact that a court issues a notice to the respondent can normally only mean that the court is unable to make up its mind, on a perusal of the records, whether the decree sought to be appealed against, satisfies the requirements of Order 44 rule 1 (2) and that the appeal itself was intended to be admitted and when that had been done, the judge could not rescind the order and have second thought on the question of admissibility of the appeal. The Kerala High Court in the case of Krishna Bhatta (supra) also took the view that it is not open to the court to re-consider the matter at a subsequent stage and say that the decree is correct and just and, thereforee no notice ought to have been issued on the application or that the application should have been rejected at the first stage.
(11) In Basant Kaur v. Chandulal A.I.R. 1929 Lah 514, (6) Shadi Lal, C.J. observed:-
'Ifail to understand why the, order of admission which is only an ex-parte order should be binding upon the respondent and why he should be precluded from showing that the case does not fulfill the requirements of the law as enacted by the aforesaid proviso. Moreover, it sometimes happens that the Court, before finally deciding the question, desires to hear the respondent and there is no valid reason why the order of admission should prevent the Court from pronouncing its decision thereupon at the final hearing.'
(12) The decision in the case of Basant Kaur was followed by the Lahore High Court in the case of Banarsi Das and others v. Munshi Ram and others A.I.R. 1934 Lah 72 (7). After considering these cases and some other cases, including those of Abdul Majid and Krishna Bhatta (supra) the Punjab High Court held in the case of Het Ram v. Chandgi Ram etc. 1965 67 P.L.R. 1129 (8) that respondents would be entitled after notice under Order 44, rule 1, of the Code of Civil Procedure to come and raise the question whether or not the decree sought to be appealed against is contrary to law or some usage having the force of law or is otherwise erroneous or unjust. The Rajasthan High Court in Narsing Dass v. Mool Raj and others , (9) as well took the view that the mere fact that an application is not rejected at once and a notice is issued to the opposite party would not mean that the court would be precluded from rejecting the application if the opposite party was able to satisfy the court that the applicant's contention was wrong and that the decree was really not contrary to law or some usage having the force of law or that it is not otherwise erroneous or unjust. It was further mentioned that a court should proceed to enquire into the pauperism of the applicant only after it has definitely come to the conclusion that the application is not fit to be rejected on the above grounds.
(13) In our opinion mere issue of notice to the respondent does not mean that the court has formed the opinion that prima facie the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust and, thereforee, the application for being allowed to appeal as a pauper is not liable to be rejected under rule 1(2) of Order Xliv of the Code of Civil Procedure. With great respect we are in agreement with the view taken in the case of Het Ram and Narsingh Dass (supra) (8). The stage for enquiring into the pauperism of the applicant only arises after the court has come to the conclusion that the application is not fit to be rejected on the grounds mentioned in sub-rule (2) of rule 1 of Order Xliv of the Code of Civil Procedure.
(14) In the present case the order by which notice was issued to the respondent cannot be regarded as a decision of the court that the order sought to be appealed against was prima facie found to be contrary to law or to some usage having the force of law or was otherwise erroneous or unjust. There being a stay application and ex-parte interim stay having been granted a notice was issued. It was only after service of notice had been affected that a date was fixed for hearing the applicant or his counsel and for perusing the application and the order in terms of sub-rule (2) of rule 1 of Order Xliv of the Code of Civil Procedure. The application was, thereforee, still liable to be rejected unless on hearing the applicant or his counsel and upon perusing the application and the order, the order could prima facie be regarded to be contrary to law or some usage having the force of law or to be otherwise erroneous or unjust.
(15) We heard the counsel for the applicant and have also gone through the application and the order against which appeal is sought to be filed as a pauper. We find that prima facie it is in no way contrary to any law or any usage having the force of law and is also otherwise not erroneous or unjust for the purposes of Order Xliv, rule 1(2), Code of Civil Procedure. The application for leave to appeal as a pauper cannot, thereforee, be allowed and is rejected, but with no order as to costs. The applicant shall however, be entitled to make good the deficiency of court fee on the memorandum of appeal not later than two months from the date of this order. If the deficiency in the court fee payable on the memorandum of appeal is made up the appeal shall be registered. We would also like to make it clear that at the hearing of the appeal our present decision shall not stand in the way of the appellant in showing that on the basis of the entire record of the case the appeal deserves to succeed.