M.V.SUBBA RAO Vs. LAND ACQUISITION OFFICER

JUDGEMENT

(1.) This writ petition is filed by the Decree Holder challenging the order passed by the Executing Court upholding the objection of the Judgment Debtor that the Decree Holder is not entitled to payment of interest prior to the issue of notification under Section 4(1) of the Land Acquisition Act, 1894, which is hereinafter referred to as "the Act". The petitioners were the owners of land bearing Sy. No. 12(A) and 12(AA) measuring 2 acres 12 guntas of Singapore Village in Sindhanoor Taluk, Raichur District. The said land was notified for acquisition for the construction of Ayacut Road from RG Road to Kakkargol Village. A preliminary notification came to be issued on 26.04.1993. Award came to be passed on 15.02.1995 by the Land Acquisition Officer, fixing the market value of the acquired land at Rs. 15,000-00 per acre. The petitioners protested and sought for reference under Section 18(1) of the Act. The matter was referred to the Civil Court. It was numbered as LAC 60/03 on the file of the Additional Civil Judge, Sr. Dvn, Raichur. The reference was allowed. After enquiry, the market value was enhanced to Rs. 73,000-00 per acre. The Reference Court also granted all statutory benefits and also held that the claimants are entitled to interest at 9% for the period of one year from the date of taking possession, i.e., 06.11.1960 and thereafter 15% till the date of payment as per Section 28 of the Land Acquisition Act. Thereafter the petitioners filed Execution Petition in E.P. No. 16/2005 for execution of the award dated 06.09.2004 in LAC No. 60/2003. It was renumbered as E.P. No. 409/06 before the Civil Judge, Sr. Division, Lingsugur. It is also on record that Government decided not to file any appeal against LAC 60/2003. Accordingly the Government withdrew the sanction for filing the appeal against the order, as per the Government order dated 01.03.2007, which is produced at Annexure-D. The Execution Petition came to be dismissed for default. One more Execution Petition came to be filed in E.P. No. 9/2007. Along with the Execution Petition, Decree Holder have filed a calculation memo claiming a sum of Rs. 68,61,092-00. In the Execution case, a warrant came to be issued. Thereafter, a sum of 46,63,205-00 came to be deposited, after deducting income tax at source in a sum of Rs. 5,88,152-00, i.e., totally a sum of Rs. 52,51,357-00. They undertook to pay the balance amount of Rs. 14,93,934-00 within a short period. Subsequently, the petitioners filed a fresh memo of calculation reflecting the balance amount payable by the respondents as Rs. 17,01,097-00 as on 18.08.2007. At that stage, the respondents filed objection in the Execution Petition contending that in the light of the latest judgment of the Hon'ble Supreme Court of India, the petitioners are not entitled to interest for the period anterior to notification under Section 4(1) of the Act, on the ground that possession of land was taken earlier to the notification. The matter was heard. It was contended on behalf of the Decree Holder that decree had attained finality and the Executing Court cannot go behind the decree and therefore the objection filed by the Judgment Debtor is untenable and that it requires to be rejected. However, the Executing Court considering the rival contentions, took note of the judgment of the Apex Court in R.L. Jain's case, and came to the conclusion that the Decree Holder is not entitled to interest from the date of taking possession, i.e., 06.11.1960 up to 26.04.1993, the date of Section 4(1) notification. It closed the Execution Petition on the ground that the decree is fully satisfied, reserving liberty to the Judgment Debtor to take steps to recover the excess amount paid. Aggrieved by the said order of the Executing Court, the present writ petition is filed.

(2.) The learned Counsel appearing for the petitioners assailing the impugned order contends that, it is settled law that once a decree has attained finality, the Execution Court cannot go behind the decree. The decree which is passed has become final. Even if it is illegal and erroneous, the same is to be corrected by preferring an appeal. The Executing Court has no jurisdiction to correct such errors. In fact, the judgment and award passed by the Reference Court was anterior to the judgment of the Apex Court in R.L. Jain's case. Therefore the judgment and decree passed in this case is correct and legal. Merely because a subsequent judgment renders the said judgment illegal, that is not a ground to refuse to execute the decree. In support of his contention, he relied on several judgments of the Apex Court.

(3.) Per contra, the learned Government Advocate submitted that it is not a case of irregularity or illegality in passing the decree. It is a case of want of jurisdiction in the Court to pass a decree. If under the statute, the Reference Court had no jurisdiction to grant interest prior to the date of Section 4(1) notification, the Court had no jurisdiction to grant interest. That portion of the decree is one without jurisdiction. Objection regarding want of jurisdiction can be taken at the stage of Execution proceedings also. Therefore, it is not a case where the Executing Court is going behind the decree. It is a case where the Executing Court has declined to enforce the decree on the ground that it is a decree passed by the Court without jurisdiction and therefore unenforceable. Therefore he submits that the Executing Court committed no illegality in passing the impugned order calling for interference.