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Bansidhur Marwari and ors. Vs. Secretary of State for India - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal533
AppellantBansidhur Marwari and ors.
RespondentSecretary of State for India
Cases ReferredDul Chand Singhi v. Secretary of State
Excerpt:
- .....time under section 5, limitation act, for filing an appeal to this court against an order of the land acquisition judge dismissing the petitioner's application for restoration of his previous application dismissed for default. it appears that on a reference by the collector the matter came up before the land acquisition judge and on the 21st may 1924 it was dismissed for default in the absence of the petitioner. on the 11th june 1924, the petitioners applied under order 9, rule 9, for restoration of the case. this application was also dismissed for default on the 10th january 1925. on the 6fch march 1925, the petitioners applied before the land acquisition judge for review of his order, dated the 10th january 1925 that application for review was dismissed on the 26th june 1926.2. the.....
Judgment:

Suhrawardy, J.

1. This is an application for extension of time under Section 5, Limitation Act, for filing an appeal to this Court against an order of the Land Acquisition Judge dismissing the petitioner's application for restoration of his previous application dismissed for default. It appears that on a reference by the Collector the matter came up before the Land Acquisition Judge and on the 21st May 1924 it was dismissed for default in the absence of the petitioner. On the 11th June 1924, the petitioners applied under Order 9, Rule 9, for restoration of the case. This application was also dismissed for default on the 10th January 1925. On the 6fch March 1925, the petitioners applied before the Land Acquisition Judge for review of his order, dated the 10th January 1925 That application for review was dismissed on the 26th June 1926.

2. The petitioners thereafter presented a memorandum of appeal to this Court on the 30th July 1926 directed against the order of the 10th January 1925 and almost simultaneously made the present application for extension of time under Section 5 of the Limitation Act. If there were no objection to the maintainability of the appeal I would have felt disposed to excuse the time covered by the proceedings for review of judgment in the Court below. But the learned Government Pleader who appears on behalf of the opposite party argues that the order against which the petitioners seek to appeal to this Court is an order from which no appeal lies under the Land Acquisition Act to this Court. Our attention has been drawn to Section 54 of the Land Acquisition Act. That section says that an appeal from an order of the Land Acquisition Judge shall only lie to this Court from the award or any part of the award. The learned Advocate who appears for the petitioners argues that the wording of that section is wide enough to include an appeal from an order such as the one from which he is appealing; and he bases his contention on the introduction of the words 'in any proceeding' into the section by the Act of 1921. The section as it stood before 1921 read as follows:

Subject to the provisions of the Code of Civil Procedure applicable to appeals from original decrees, an appeal shall lie to the High Court from the award or from any part of the award of the Court in any proceeding under this Act.

3. The amendment or alteration of the section by the Act of 1921 simply amplifies its provision by making it explicit and adding the right of appeal from the High Court to the Privy Council. On a comparison of the wordings of the repealed section and of the present section it seems that the present section is more stringent in its provisions as it indicates that an appeal shall lie only from the award or any part of the award. The addition of the word 'only' after appeal must be taken to signify that the Legislature intended that an appeal should not lie from any order unless such an order can be construed as an award.

4. 'Award' has not been properly defined in the Act; but what is or may be supposed to be an award has been sufficiently indicated in several sections of which reference may be made to Section 11. Section 26 also indicates as to what an award should be. Under that section an award shall specify the amount awarded under Section 23. The order against which the petitioners want to appeal cannot be said to be an award within the meaning of Section 26 of the Act. This view was taken in the case of Hasun Molla v. Tasiruddin [1911] 39 Cal. 393 where it was held that no appeal lay from an order of the Judge refusing to restore a case by setting aside the decree passed ex parte for default of the petitioner; and it was there observed that under Section 54 an appeal would lie only against an award or any part of an award. It is however argued that the addition of the words 'in any proceeding' in the section by the amending Act extends the right of appeal under Section 54 so as to include the present order. We do not think that the words in any proceeding were calculated to convey any such meaning. These words were added as at one time doubts were expressed as to certain orders of the Land Acquisition Judge being considered as awards, such orders having been described as 'decisions of Court.' Whatever the reason for the introduction of those words may be, it is clear that they do not give the right of appeal against any order which cannot strictly be called an award. The view taken in Hasun Molla's case [1911] 39 Cal. 393 has been after the amendment in 1921, followed and adopted in Dul Chand Singhi v. Secretary of State [1916] 43 Cal. 665 and Sarat Chandra Ghose v. Secretary of State [1919] 46 Cal. 861 though the latter, case in construing the particular order involved therein differed from the decision in Dul Chand Singhi v. Secretary of State [1916] 43 Cal. 665. We are accordingly of opinion that no appeal lies from the order passed by the Land Acquisition Judge on the 10th January 1925 dismissing the petitioners' application for restoration of his previous application dismissed for default. It will therefore serve no useful purpose to allow the petitioners extension of time to file the appeal.

5. In this view this rule fails and is discharged with costs five gold mohurs.

Duval, J.

6. I agree.


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