KRISHNA UDAYAN Vs. CHINNA PILLAI

JUDGEMENT

(1.) THIS petition arises out of an application for setting aside an order passed ex parte on a reference (L.A.C. No. 7 of 1945) under Section 30 of the Land Acquisition Act. The petitioner and the respondent were claimants in respect of the amount awarded and the reference made in that connection to the Sub -ordinate Judge of Salem under Section 30, stood posted to the 24th of August, 1945, when the respondent filed his statement. The proceedings were then adjourned to 19th September, 1945. On that day, the respondent was absent and an adjournment asked for on his behalf was granted till 2nd October, 1945, on condition that he paid Rs. 4 to the petitioner as costs for the day. But on 2nd October, 1945, the respondent was again absent and his vakil reported 'No, instructions. The day costs was not paid. The petitioner then proved his claim and an order was passed in his favour, the Court holding that he was entitled to the amount in dispute. The respondent thereupon filed a petition under Order 9, Rule 13 of the Code of Civil Procedure to set aside the order passed in favour of the petitioner. The Subordinate Judge dismissed this petition taking the view that the order disposing of the reference under Section 30 of the Land Acquisition Act was one on merits and fell under Order 17, Rule 3, Civil Procedure Code in view of the fact that the respondent who had been asked to pay the day costs committed default. He appears to have regarded the direction regarding day costs as a condition pre -cedent. On appeal by the respondent the learned District Judge held that the Order in L.A.C. No. 7 of 1945 was an order passed ex parte coming within Rule 2 of Order 17, Civil Procedure Code. He therefore remanded the application for disposal on the merits as the learned Subordinate Judge had not considered the question whether the respondent had sufficient cause for his non -appearance on the 2nd October. It is against this order of remand that this Civil Revision Petition has been filed.

(2.) IT is contended on behalf of the petitioner that in respect of proceedings under Section 30 of the Land Acquisition Act the only remedy open to a claimant is to treat the order against him as part of the award and appeal under Section 54 of the Land Acquisition Act to this Court, and that Order 9, Rule 13, Civil Procedure Code does not apply to such proceedings. This contention cannot be accepted in view of the decision of a Bench of this Court in Chikkanna v. : AIR1940Mad474 . There, it was held that a Subordinate Judge appointed by the Provincial Government under Section 3 (d) of the Land Acquisition Act to decide a dispute referred under Section 30 of the Act is a Civil Court and that the decision therein is a decree and an appeal lies from such decision as an appeal against a decree. It is there observed that in the light of the Privy Council decision in Ramachandra Rao v. an order determining a reference under Section 30 is to be regarded as a decree and not as an award. In this view the order of the Subordinate Judge passed on 2nd October, 1945, is a decree, and consequently Order 9, Rule 13, Civil Procedure Code which empowers the Court to set aside a decree passed ex parte does apply. I therefore consider that the application before the learned Subordinate Judge for setting aside this order was competent.

(3.) I have not been shown any provision in the Land Acquistion Act which is inconsis -tent either with Order 9, Rule 13 or with Order 43, Rule 1 (d), Civil Procedure Code. I therefore consider that the appeal to the District Judge was competent.