STATE OF HIMACHAL PRADESH Vs. SURINDER SINGH SIBIA

JUDGEMENT

(1.) THE question, whether in view of sub-rule (3) of Order 4l, Rule 1 of the Code of Civil Procedure, this appeal can be entertained and heard on admission for a final disposal, when the appellants have not deposited the amount due under the award, has arisen for consideration. To resolve certain disputes that had arisen between the appellants and second respondent on the one hand, and the first respondent, on the other, with regard to payment of rate/compensation for occupation of a house, requisitioned under the H.P. Requisitioning and Acquisition of Immovable Property Act, 1972, an arbitrator was appointed and he submitted an award dated 28-12-1993, under which the appellants, along with the second respondent, were found liable to pay certain sums to the first respondent in this appeal. THE appellants have preferred this appeal against the award, so passed, under Section 13 of the H.P. Requisition of Immovable Property Act, 1987, and they have not, admittedly, deposited the amount for which they had been made liable. That is how, the question posed earlier, arises. In order to consider this question, it would be appropriate at this stage to notice the provisions of certain other enactments, providing for an appeal, subject to fulfilment of certain conditions. Under S. 30 of the Workmen's Compensation Act, 1923, while providing for an appeal to the High Court from the orders enumerated under Section 30(1) of that Act, it has been further provided that no appeal, by the employer, under clause (a) of Section 30(1), shall lie, unless the Memorandum of Appeal is accompanied by a certificate by the Commissioner to the effect that the appellant had deposited with him, the amount payable under the order appealed against. Likewise, Section 173(1) of the Motor Vehicles Act, 1988, provides for an appeal to the High Court by a person aggrieved by an award of a claims tribunal. That is, however, conditioned by the proviso to the effect that no appeal shall be entertained by the High Court, unless the person required to pay any amount in terms of an award, has deposited Rs. 25,000.00 or fifty percent of the amount awarded, whichever is less. In contrast to the aforesaid provisions in the enactments referred to, Section 13 of the H.P. Requisition of immovable Property Act, 1987 provides for an appeal simpliciter to the High Court at the instance of any person aggrieved by an award of the Arbitrator made under Section 9 of that Act. THE Rules framed under the Act also do not make any reference whatever, to any pre-condition either for the entertainability of the appeal or even for its consideration for admission for a final disposal. It is thus seen that under Section 13 of the H.P. Requisition of Immovable Property Act, 1987, appeal to the High Court against an award is provided and on its terms, a deposit of the amount - payable by the aggrieved person under the Act, has not been made a condition precedent either for - the entertainability of the appeal or even for its hearing for admission for final disposal. THE Rules, as pointed out earlier, are also silent on this aspect. Thus, on a consideration of the relevant provisions of the Act and the Rules, it is seen that there is no obligation cast on the appellants to deposit any amount for maintaining an appeal or its hearing for admission for a final disposal.

(2.) EXAMINING the proceeding before us, it is seen that the mere provision for an appeal to the High Court under S. 13 of the H.P. Requisition of Immovable Property Act, 1987, does not establish that the High Court exercises any special jurisdiction, but that it exercises only the ordinary appellate jurisdiction and when the High Court is appealed to as one of the ordinary appellate courts of the Country, then, in regard to its procedure, orders and decrees, the ordinary Rules of C.P.C. would apply. That this is so, has been very clearly laid down by the Privy Council in Secretary of State for India v. Chellikhani Rama Rao, 43 Ind App 192 : AIR 1916 PC 21, in Hem Singh v. Basant Das 63 Ind App 180 : AIR 1936 PC 93. In addition, in R.M.A.R.A. Adaikappa Chettiar v. R. Chandrasekhara Thevar, AIR 1948 PC 12, Lord Simonds, pointed out that when the ordinary courts of the country are seized of a dispute, the Courts are governed by the ordinary rules of procedure applicable thereto. From the foregoing, it follows that even with reference to the appeal, though provided under Section 13 of the H.P. Requisition of Immovable Property Act, 1987, the procedure to be followed before the High Court would be that as laid down in the Code of Civil Procedure. The present proceeding, being in the nature of a regular first appeal, would be governed by the provisions of Order 41, C.P.C. and it becomes necessary, therefore, to examine in some detail the relevant provision, in order to consider the question that had arisen. Under Order 41, Rule 1, C.P.C. provision is made in regard to the form of the appeal and the copies to accompany the same Order 41, Rule 1(2) refers to the contents of the Memorandum of Appeal. Then comes Order 41, Rule 1 sub-rule (3), which provides that where the appeal is against a decree for payment of money, the appellant shall, within such time as the appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof, as the Court may think fit. This sub-rule will be noticed in some detail later in the course of this order. Order 41, Rule 3 provides for the rejection of the Memorandum of Appeal, if not drawn up in the prescribed manner and it also permits the return of the Memorandum for the purpose of being amended within the time fixed by the Court or even to be amended then and there. Sub-rule (2) of Order 41, Rule 3, C. P. C. enables the court to record the reasons for the rejection of Memorandum of Appeal. It is also necessary to take note of Order 41, Rule 5, wherein provision is made for the Court passing an order for stay of execution of the decree. It would be sufficient for our present purpose to notice that under sub-rule (5) or Order 41, Rule 5, it had been provided that notwithstanding the power of the Court to grant stay as provided under Order 41, Rule 5, sub-rule 1 to 4, if the appellant fails to make a deposit of furnish the security specified in sub-rule (3) of Rule 1, the court shall not make an order staying the execution of the decree. Considering the legislative background culminating in the introduction of sub-rule (3) of Order 41, Rule 1 and Order 41, Rule 5(5), C. P. C. the Courts in Union Bank of India v. Jagan Nath Radhey Shyam and Co. AIR 1979 Delhi 36, State of Andhra Pradesh v. Mahmud Hasan Khan Maharaj Kumar of Mahamoodabad, AIR 1983 Andh Pra 277, Prabhakar v. Vinayakrao, AIR 1983 Bom 301, Himachal Road Transport Corporation v. Sushila Devi, ILR (1984) Him Pra 882 : (AIR 1986 Him Pra 78), Associated Transport Corporation (P) Ltd. v. National Insurance Co. Ltd. (1989) 1 Ker LT 386, and Land Acquisition Collector v. Ram Rakha, (R.F.A. No. 77 of 1993, dated 28-7-1993) have taken the view that the deposit or furnishing of security contemplated under sub-rule (3) of Rule 1 of Order 41, C.P.C. is mandatory only for the purpose of granting stay of execution of money decree, but is not so or filing or entertaining an appeal and the deposit of the amount due under the money decree or the furnishing of the security thereof, is not a condition precedent either for the filing of an appeal or for the final adjudication of such an appeal. Though such a view has been uniformally expressed in the decisions referred to earlier, it is, in our view unnecessary for us to embark upon a consideration of the aspects dealt with therein, on account of the provisions contained in H. P. Requisition of Immovable Property Act 1987 and also Rules framed thereunder. It has, however, to be borne in mind that if at all sub-rule (3) of Order 41, Rule 1 could be invoked, it could be so done, only where an appeal is against a decree for payment of money. In this case, as noticed earlier, the appeal has been preferred by the appellants under Section 13 of the H.P. Requisition of Immovable Property Act, 1987, against an award of the Arbitrator passed under Section 9 of the Act. Under Section 2(a) of the Act, 'an award' is defined as any award of an arbitrator made under Section 9. The principles and methods of determining compensation to be followed by the Arbtirator, have been catalogued under Section 9 of the Act. A significant provision has also been made under Section 9(1)(g) of that Act, to the effect that nothing in the Arbitration Act, 1940 (10 of 1940) shall apply to arbitration under Section 9 of the Act. Section 10 provides that amount of compensation payable under an award shall be paid or given by the competent authority to the person or persons entitled thereto, in such manner and within such time, as may be specified. Provision is also made for payment of interest and enhanced interest under certain conditions. Even under Rule 9(5) of the Rules framed under the Act, the Arbitrator need not send a copy of the award to the Court, unless an appeal is preferred against the award, in which case the original award, together with the record of the proceedings should be forwarded to the High Court. In regard to payment of the amount awarded by the arbitrator, Rule 9(6) provides that the competent authority shall pay the amount awarded by the arbitrator to the persons entitled thereto in the manner prescribed under Rule 10. It is significant that no Rule has been framed in relation to appeals, Provided for under Section 13 of the Himachal Pradesh Requisition of Immovable Property Act, 1987. In the context of the aforesaid provisions in the 1987 Act and the Rules framed thereunder, a further question that arises for consideration is whether the appeal preferred by the appellants can be regarded as one against a decree for payment of money, so as to invite the application of sub-section (3) of Order 41, Rule 1, C.P.C. Under Section 2(2) of the C.P.C. a 'decree' means the formal expression of an adjudication which, so far as regards the court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It is at once obvious that in order to fall within the definition of a decree under Section 2(2), C.P.C, matters must have been in controversy in a suit and they had been adjudicated upon by the Court. In this case, the proceedings were before the Arbitrator and there was, therefore, no question of any controversy having arisen in suit and the Court proceeding to formally express its adjudication with a view to determine the rights of the parties. Apart from this circumstance that the award appealed against in this case cannot be regarded as a decree within the definition of a 'decree' under Section 2(2), C.P.C., there are also other aspects, which deserve examination. It is significant that under Section 9(g) of the H.P. Requisition of Immovable Property Act, 1987, the applicability of the provisions of the Arbitration Act, has been excluded. This, in our view, has been done with a purpose. The provisions of H.P. Requisition of Immovable Property Act, 1987, are intended to provide a complete Code for determination of compensation by arbitration under Section 9 and there is no provision either under the Act or in the Rules to the effect that an award will be enforceable as a 'decree by a Civil Court'. Presumably, such a provision was felt unnecessary in view of the act that in almost all cases, it is the Government which is obliged to pay the amounts by way of compensation and in the discharge of its obligation, it is also generally expected that the Government would pay up the amounts, payable by it under an award or in the event of an appeal, there would be compliance with the decision of the High Court. In other words, it was not at all in contemplation that any occasion would arise for party to enforce the terms of the award for payment of compensation against the Government. The exclusion of the applicability of the provisions of the Arbitration Act, 1940, is also not without significance. If those provisions Apply, the award of the arbitrator has to be filed or submitted before the concerned civil court and the abritrator or umpire has also the power to State a special case under Section 13(b) on certain questions to the Court or make an award conditional or in the alternative, under Section 14 of the Arbitration Act, the award finally has to be signed and filed in the Court. The Court has power under Section 15 to modify or correct the award and the Court may, under Section 16, remit the award or any matter referred to the Arbitrator or Umpire, for re-consideration. Under Section 17 of the Arbitration Act, if the Court does not see any cause to remit the award or any of the matters referred to arbitration for re-consideration or to set aside the award, it shall proceed to pronounce the judgment according to the award and upon a judgment so pronounced, a decree shall follow and no appeal shall lie from such a decree, except on the ground that it is in excess of, or not in accordance with the award. In the light of the aforesaid provisions under the Arbitration Act, 1940, the applicability of which has been excluded under Section 9(g) of the Himachal Pradesh Requisition of Immovable Property Act, 1987, it is seen that the entire procedure with reference to the submission of an award by the arbitrator, its being filed before the Court, the Court taking into account the contents of the award and when it does not see any cause to alter or modify it, or direct a reconsideration of the some of the matters referred for arbitration, its proceeding to pass a decree capable of execution, is not attracted. The wholesale exclusion of the applicability of these provisions of the Arbitration Act, under the provisions of the H. P. Requisition of Immovable Property Act, 1987, is a clear indication that it was farthest from the intention of the makers of that Act that an award should be regarded as a decree for any purpose. From the provisions of H. P. Requisition of Immovable Property Act, 1987, and the Rules framed thereunder, it is clearly seen that the provisions with reference to arbitration form a complete code and there is no provision to construe the award as a decree for payment of money or even to enforce it as a decree. Under those circumstances, the award appealed against in this case, cannot be regarded as decree for payment of money, so as to attract the applicability of sub-rule (3) of Order 41, Rule 1 CPC. The appellants, therefore, are under no obligation either to deposit the amount disputed in the appeal or even to furnish security in respect thereof. Sub-rule (5)of Order 41 Rule-5 CPC imposes a restriction on the power of the Court to grant stay when the appellant in an appeal, fails to make the deposit or furnish the security, as per subrule (3) of Rule 1 of Order 41. That provision contemplates a direction earlier by the Court to the appellant to make a deposit or furnish security and a failure on his part to do so, in which case, the court cannot grant stay of execution of the decree. In other words, even on the view taken by the decisions referred to earlier, on the basis of the provisions of the Himachal Pradesh Requisition of Immovable Property Act, 1987, and the rules framed thereunder, the award appealed against, cannot be regarded as a "decree for payment of money" falling within sub-rule (3) of Order 41 Rule 1 which, in turn, would attract sub rule (5) of Order 41 Rule 5 and there is, therefore, no question of the appeal preferred by the appellants not being entertainable or even not being considered for admission for a final hearing.

(3.) THIS judgment is being signed and pronounced by one of us (A. L. Vaidya, J.) because the other member of the Bench, Hon'ble V. Ratnam, C. J., is not available on his appointment as Governor, Himachal Pradesh, on 10/07/1994, and demitting his office of C. J. on 31.7-1994. However, in his capacity as C. J. his lordship has agreed to the judgment and consented to its pronouncement. Appeal allowed.