Amaresh Roy, J.
1. This Is an application under Art, 133(1) (a), (b) & (c) of the Constitution of India, and it arises out of an appeal that was disposed of by the judgment of a Division Bench of this Court composed of by my learned brother the Hon'ble Mr. Justice Amiya Kumar Mookerji sitting with the Hon'ble Mr. Justice P. N. Mookeriee. P. N. Mooker-3ee, J. has left this Court on superannuation. This application has been assigned to this Bench by my Lord the Hon'ble the Chief Justice by an order dated 19th April. 1972.
2. The application arises out of a proceeding for acquisition of land under the Defence of India Act. Property. sought to be acquired comprised land and structures thereon. The area of the land wtas 1 bigha 10 cottash and 14 Chs. The Collector's offer was at the rate of Rupees 500/- per cottah for the land and Rupees 30,394/- for the structures. The total offer made by the Collector came to Rs. 48093,02 paise. The claimant claimed at the rate of Rs. 1,500/- per cottah for the land and Rs. 60,274/- for the structures. The claimant also claimed statutory allowance of 15% under the law. The Arbitrator allowed a compensation of Rs. 61,661/- including 15% statutory allowance and interest at the rate of 5% per annum. Against the decision of the Abitrator the claimant appealed to this Court and by the judgment of the Division Bench mentioned above this Court enhanced the amount of compensation to Rs. 45,334/- for the land and Rs. 30,875/-for the structures. The total coming to Rs. 76,209 with the usual statutory allowance of Rs. 15 per cent. This Court also awarded to the claimant interest et the rate of 5% per annum. That was awarded by the learned Arbitrator but with a little variation as to the period.
3. Against that decision of this Court the present application has been made praying for a certificate of fitness under Article 133(1)(a)(b) and (c) of the Constitution of India.
4. Appearing on behalf of the applicant the learned Advocate Mr. A. M. Mitra has contended that the judgment sought to be appealed from is which is not an affirmance and the proposed appeal according to Mr. Mitra satisfies the valuation test. He also contended that it is also a final order because it has finally determined the lease between the parties and therefore, it comes directly under Article 133(1)(a) of the Constitution,
5. Mr. Sengupta. appearing on behalf of the respondent contends that the instant case does not come within the provision of Art 133(1)(a) of the Constitution, as the decision given by this Court in appeal against the award is not a decree, judgment or final order. The decision of the Arbitrator appointed under Section 19 (1) (b) of the Defence of India Act, is expressly referred to in Section 19 (11 (f) as an 'award'. An appeal is a continuation of the original proceeding which is an arbitration proceeding. It is contended that the character does not change when it has been brought up before an appellate Court. In this respect two decisions of the Supreme Court have been discussed before us. In the case of Hans Kumar Kishen Chand v. Union of India, : 1SCR1177 their Lordships observed that it is not every decision given by a Court that could be said to be a judgment, decree or order within the provisions of the Civil P. C. It will depend on whether the proceedings in which it was given, came before the Court in its normal civil jurisdiction. Their Lordships referred to the Court for determination by way of arbitration or where it comes by way of appeal against an award, then the decision is not a judgment, decree or order under the Code of Civil Procedure. In that case Supreme Court held that the High Court in hearing and deciding the appeal of the present nature acts essentially as an Arbitration Tribunal, and for that reason the decision of the High Court in the appeal under that provision of the Defence of India Act is not a judgment, decree or order within the meaning of Sections 109 and 110. Civil P. C. In a later decision in the case of Collector Varanashi v. Gouri Shankar Misra, : 1SCR372 the Supreme Court held that under Section 19 (f) of the Act the High Court functions as a 'Court' and not as a designated person or arbitration tribunal. It was held in that decision of the Supreme Court that the decision rendered by the High Court under Section 19 (1) (f) of the Defence of India Act is a 'determination', and hence, it is within the competence of the Supreme Court to grant special leave to appeal under Article 136 of the Constitution.
6. By effect of those two decisions, in our view, the law stated that High Court in hearing appeals under the Defence of India Act functions as a Court. To that extent the later Supreme Court decision has modified the view of that Court as it appears in the earlier decision mentioned above. But at the same time in the later decision the Supreme Court has left unaltered the previous view that the decision given by the High Court in an appeal against the award is neither a decree, nor a judgment nor final order. But their Lordships have held in that later decision that the decision rendered by the High Court under Section 19 (11 (f) of the Defence of India Act is a 'determination'. The word 'determination' occurs in Article 136 but does not occur in Article 133 of the Constitution of India. In our view the position therefore is that, even if it be held that the proposed appeal satisfy the valuation test, it does not satisfy the other conditions in so far the decision of the Division Bench of this Court dated 12th May, 1970 in appeal against Award under the Defence of India Act is not a decree, judgment or final order within the meaning of Article 133(1) of the Constitution. That being so, the certificate of fitness for an appeal to the Supreme Court cannot be granted.
7. In the result the application Is dismissed.
8. There will be no order as to cost.
Amiya Kumar Mookerji, J.
9. I agree.