STATE OF KERALA Vs. KIRIYAN VARGHESE DIED

JUDGEMENT

(1.) This appeal sought to be filed under S.5 of the Kerala High Court Act is by the State of Kerala which feels aggrieved by the dismissal of an appeal filed by it as L. A. A. 930 of 1997 under S.54 of the Land Acquisition Act read with O.XLI R.1 of the Code of Civil Procedure. When the appeal came up for admission the Division Bench before which it came entertained a doubt whether an appeal under S.5 of the Kerala High Court Act would lie against the decree passed by this Court in an appeal under S.54 of the Land Acquisition Act. The State relied upon a decision of a Full Bench in A. F. A. 109 of 1994 reported as Premavally v. State of Kerala ( 1998 (1) KLT 822 ) in support of its position that an appeal under S.5 of the High Court Act was maintainable. The Division Bench having felt that some aspects require a deeper examination referred the question to a Full Bench. That is how this appeal has come up before the Full Bench.

(2.) S.26 of the Land Acquisition Act in sub-s.2 thereof provides that every award passed under Part III of the Land Acquisition Act shall be deemed to be a decree as defined in S.2(2) of the Code of Civil Procedure and the grounds of every such award shall be deemed to be a judgment as defined in S.2(9) of the Code of Civil Procedure. S.54 of the Act provides for an appeal and S.53 of the Act provides that the Code of Civil Procedure is to apply to proceedings before Court. S.54 provides not only for an appeal to the High Court from an award passed by the court of first instance, but also provides for a further appeal to the Supreme Court from the decision of the High Court in the appeal. The appeal before this Court, L. A. A. 930 of 1997, was filed by the State of Kerala invoking S.54 of the Land Acquisition Act. That appeal was disposed of by a learned Single Judge of this Court, presumably in the light of the power conferred on him under S.3(13)(b) of the High Court Act since the value of the subject matter of the proceeding did not exceed Rs. 1 lakh. It is that decree that is sought to be challenged by the State of Kerala in a further intra Court appeal, invoking S.5(ii) of the High Court Act on the basis that S.5(ii) of the Act applies and it has a right of appeal under that provision.

(3.) Earlier, when the Kerala Land Acquisition Act 1961 was in force, S.60 of that Act provided for appeals from the award of the court of first instance as if the award were a decree passed by a civil court under the provisions of the Code of Civil Procedure, 1908. S.59 of the Act provides that the Code of Civil Procedure shall apply to proceedings before the court. S.28 provided that every award shall be deemed to be a decree as defined in S.2(2) of the Code of Civil Procedure and the grounds for the award shall be deemed to be a judgment as defined in S.2(9) of the Code of Civil Procedure. Under S.12 of the Kerala Civil Courts Act, 1957, save as provided in S.13 of that Act, appeals from the decrees or orders of a District Court or a Subordinate Judge's Court lay to the High Court. A dispute relating to compensation either by way of a claim for enhancement or by way of apportionment, lay before the Subordinate Judge's Court. S.13 of the Civil Courts Act provided for an appeal from a decree of a Subordinate Judge's Court to the District Court in a case where the subject matter of the suit did not exceed Rs. 25000 (earlier the amount was lesser). The question arose whether an appeal against an award decree of the Subordinate Judge's Court could be filed in the District Court based on the valuation, as contemplated by S.13 of the Kerala Civil Courts Act, 1957. A Full Bench of this Court in Palakattumala Devaswom v. Pylee ( 1969 KLT 275 ) held that all appeals lay to the High Court since what was excluded from the operation of S.12 of the Civil Courts Act by S.13 of that Act was only an appeal from a decree or order in a suit. The Full Bench held that a proceeding in the Court under the Land Acquisition Act being not one instituted by the presentation of a plaint or in any other manner as may be prescribed by the Rules in the First Schedule to the Code of Civil Procedure, it could not be understood as a suit to which S.13 of the Civil Courts Act applied. The Full Bench therefore held that appeals from decrees or orders of a Subordinate Judge's Court in proceedings under the Land Acquisition Act, lay to the High Court under S.12 of the Civil Courts Act, irrespective of the value of the subject matter and in no circumstance S.13 can apply so as to make an appeal maintainable in the District Court. Thus the Full Bench held that the proceeding under Part III of the Land Acquisition Act is not a suit within the meaning of S.13 of the Kerala Civil Courts Act. It may be noted here that S.60 of the Kerala Land Acquisition Act did not as such provide for an appeal to the High Court (unlike S.54 of the Act) but merely provided that an appeal shall lie from an award as if the award is a decree passed by a Civil Court, under the Code of Civil Procedure, 1908. Even then, the Full Bench ruled that S.13 of the Kerala Civil Courts Act did not have application to an award passed on a reference under the Kerala Land Acquisition Act.