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Friday, May 20, 2016

Once the order is passed it can be challenged in appeal or revision but not by recall petition - dismissal of recall petition is just and proper. = By order dated 15.09.1997, the executing Court bi- party determined the amount payable to the respondents by the State towards compensation and issued warrants against the judgment-debtor (State) for recovery of the interest amount of Rs.50,000/- and odd as it was found still payable by the State to the respondents due to delay on their part in paying the decreetal sum. It is pertinent to mention that this order was not challenged by the State in higher Courts and hence it attained finality. What was challenged by the State was an order dated 22.10.1997 by which the application made by the State to recall the order dated 15.09.1997 was dismissed by the executing Court. The executing Court was, therefore, justified in rejecting this application by holding that since the order dated 15.09.1997 was not an ex-parte order, it was binding on the State and the same not having been challenged by them had to be given effect to for realization of decreetal amount from the State. The High Court was equally justified in upholding this order of the executing Court by impugned order. What was involved was only the calculation of payment of interest on the decreetal sum for a particular period. In this Court also, learned counsel was unable to show any kind of illegality or perversity in the said calculation made by the executing Court while working out the liability of the State in paying Rs.50,000/- towards interest. Therefore, it was, in our view, a sheer abuse of process on the part of the State to pursue a matter in filing a misconceived appeal against an interim order, which we do not approve. It is unfortunate that a genuine claim of the respondents was not satisfied by the State for such a long time. Be that as it may, we find no merit in this appeal. It is accordingly dismissed with cost of Rs. 10,000/- payable to the respondents



                                                              Non-Reportable
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 5647 OF 2006



      The Land Acquisition Officer, A.P.                 Appellant(s)


                             VERSUS


      Ravi Santosh Reddy(D) by L.Rs.         Respondent(s)


                       J U D G M E N T



Abhay Manohar Sapre, J.

1)    This appeal is filed against the final order dated 13.04.2001  of  the
High Court of Judicature, Andhra Pradesh at Hyderabad in C.R.P. No.  928  of
1998 wherein the High Court dismissed the revision filed  by  the  appellant
herein against the order dated 22.10.1997 passed by  the  Subordinate  Judge
at Bhongir, Nalgonda Dist. In E.A. No. 41 of 1997 in E.P. No. 34 of 1993  in
O.P. No.7 of 1987.
2)    Few facts need mention for the disposal of the appeal, which  involves
short point.
3)    The  appellant-State  acquired  53  acres  of  land  pursuant  to  the
notification issued under Section 4(1) of the  Land  Acquisition  Act,  1894
(hereinafter referred to as “the  Act”)  on  11.05.1978.  This  notification
included the land  belonging  to  the  respondents’  predecessors  measuring
around 13 acres 18 guntas situated in Nagireddy village  Palli  in  District
Nalgonda in AP.  It was acquired for the purpose of laying  down  New  Broad
Gauge line.
4)    On 20.03.1980,  the Land Acquisition Officer (LAO)  by his  Award  No.
12  of  1980  divided  the  land  into  three  categories  and  awarded  the
compensation to all the landowners whose lands had been  acquired  including
the respondents’  predecessor  at  the  rate  of  Rs.1100/-,  Rs.1200/-  and
Rs.1700/- per acre respectively.
5)    The respondents’ predecessor  then  filed  reference  in  Civil  Court
(subordinate Judge, Bhongir) under Section 18 of the Act being O.P. No.7  of
1987 for re-determination of the compensation. This reference  was  referred
to Lok Adalat for mutual settlement.
6)    On 07.12.1988, in pursuance of the order passed by   the  Lok  Adalat,
the  subordinate  Judge  at  Bhongir  passed  an  award  and  enhanced   the
compensation payable  to  the  respondents.  In  terms  of  the  award,  the
respondents were entitled to claim a  sum  of  Rs.  6,42,681/-   by  way  of
compensation for his land from the State.
7)    The respondents’ predecessor  then filed the execution petition  being
E.P. No. 34 of 1993 for realization of the entire decreetal amount in  terms
of the said award. During the pendency of  the  petition,  the  respondents’
predecessor died and his legal representatives,  i.e.,  present  respondents
were brought on record.  By order dated 15.09.1997, the executing Court  bi-
party determined the amount payable to the respondents by the State  towards
compensation  and issued warrants against the  judgment-debtor  (State)  for
recovery of  the interest amount of Rs.50,000/- and  odd  as  it  was  found
still payable by the State to the respondents due to delay on their part  in
paying the decreetal sum.  It is pertinent to mention that  this  order  was
not challenged  by  the  State  in  higher  Courts  and  hence  it  attained
finality.
8)    However, the State made an application being E.A. No. 41  of  1997  in
E.P. No. 34 of 1993 seeking to recall the order dated 15.09.1997.  By  order
dated 22.10.1997, the executing court dismissed the said   application  made
by the State.
9)     Felt aggrieved by this  order,  the  State  filed  revision  petition
before the High Court. By impugned  order,  the  High  Court  dismissed  the
revision petition. Against the said order, the State has filed  this  appeal
by way of special leave before this Court.
10)   Heard Ms. Bina Madhavan, learned counsel appearing for the  appellant.
 Despite notice none appeared for the respondents.
11)   Having heard the  learned  counsel  for  the  appellant-State  and  on
perusal of the record of the case, we  find  absolutely  no  merit  in  this
appeal. The impugned order reads as under:
“The only question that arises for  consideration  in  this  CRP  is  as  to
whether the  order  dated  15.09.1997,  passed  in  E.P.  No.  34  of  1993,
directing attachment of the moveables of the  petitioner  should  have  been
recalled.  The order dated 15.09.1997 was passed  after  giving  opportunity
of hearing  to both the parties.  The  application  seeking  recall  of  the
said order was filed on the ground that the decree-holder did not  file  any
calculation memo.
      In the opinion of this Court, as rightly observed by  this  Court,  as
rightly observed by the learned trial Judge, if there is any  error  in  the
order dated 15.09.1997, the same can be rectified by the higher Courts.   As
the learned trial Judge has not exercised his discretion,  this  Court  does
not see any reason to interfere therewith.
      For the reasons aforementioned, the CRP is dismissed.  No costs.”

12)   Mere perusal  of  the  impugned  order  would  go  to  show  that  the
reasoning given by the High Court is just and proper.  As  rightly  held  by
the High Court, the proper remedy available to the State in  this  case  was
to challenge the main order dated  15.09.1997. This order  (15.09.1997)  was
not challenged by the State. It, therefore,  attained finality.
13)   What was challenged by the State was  an  order  dated  22.10.1997  by
which  the  application  made  by  the  State  to  recall  the  order  dated
15.09.1997 was dismissed by the executing Court. The  executing  Court  was,
therefore, justified in rejecting this application  by  holding  that  since
the order dated 15.09.1997 was  not an ex-parte order,  it  was  binding  on
the State and the same not having been challenged by them had  to  be  given
effect to for realization of decreetal  amount  from  the  State.  The  High
Court was equally justified in upholding this order of the  executing  Court
by impugned order.
14)   Though order  dated  15.09.1997  was  never  under  challenge  in  any
proceedings at the instance of the State, yet  we  perused  the  said  order
with a view to find out its  sustainability.  We  find  that  the  executing
Court found that the State was liable to pay a sum  of  Rs.50,000/-  towards
interest due to delayed payment of decreetal sum for  the  period  mentioned
therein. It is for realization of this amount (Rs.50,000/-), the warrant  of
attachment had been issued at the instance of the  respondents  against  the
State properties.
15)   In our considered opinion, the State unnecessarily pursued  this  pity
matter to this Court in this appeal, which does  not  involve  any  arguable
point either on facts or  in  law  nor  it  involves  any  point  of  public
importance and nor  it  involves  any  substantial  money  claim.  What  was
involved was only the calculation of payment of interest  on  the  decreetal
sum for a particular period.   In  this  Court  also,  learned  counsel  was
unable to show any kind of illegality or perversity in the said  calculation
made by the executing Court while working out the liability of the State  in
paying Rs.50,000/-  towards interest. Therefore, it was,   in  our  view,  a
sheer abuse of process on the part of  the  State  to  pursue  a  matter  in
filing a misconceived appeal against an  interim  order,  which  we  do  not
approve. It is unfortunate that a genuine claim of the respondents  was  not
satisfied by the State for such a long time.
16)   Be that as it may, we find no merit in this appeal. It is  accordingly
dismissed with cost of Rs. 10,000/-  payable to the respondents.
17)   The State is directed  to  pay  the  unpaid  decreetal  sum,  if  any,
including the amount,  which  is  the  subject  matter  of  this  litigation
together with the cost amount after proper verification within three  months
from the date of this order.



.……...................................J.
                                     [ABHAY MANOHAR SAPRE]


                     ………..................................J.
                                      [ASHOK BHUSHAN]
      New Delhi,
      May 18, 2016.
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