AHMAD HOSSAIN Vs. BIBI NAEMAN

JUDGEMENT

(1.) This application in revision has been filed against the order dated the 7th of October, 1961, of the 2nd Additional District Judge, Patna. One Sk. Abdul Latif, father of the petitioner and the opposite parties 2 to 7 and husband of opposite party No. 1, owned and possessed property in Mohalla Muradpur in the town of Patna. The property was acquired by the State of Bihar under the Land Acquisition Act, 1894 (Act 1 of 1894) hereinafter referred to as the Act. Under Section 11 of the Act, the Collector made an award determining a sum of Rs. 44012/- as compensation money payable to the said owner of the property. On objection by the awardee a reference under Section 18 of the Act was made to the District Judge of Patna. The said reference in Land Acquisition Case 58/52 of 1950/57 was decided by the Additional District Judge by his order dated the 29th September, 1951, and, the amount awarded by the Collector was increased by Rs. 22323/87- with future interest at 6 per cent. per annum. Abdul Latif filed First Appeal 311 of 1952 in this Court. The appeal was allowed in part by a Bench of this Court on the 5th of May, 1960. According to the decree of the High Court, the amount of extra compensation to be paid was further increased, costs were decreed and interest was also directed to be paid on the excess amount of compensation. It seems the total amount due under the High Court decree came to Rs. 83822/61 N.P. which was deposited by the State of Bihar by a cheque in the Court of the Additional District Judge on the 5th of September, 1961. The petitioner, who is a son of Abdul Latif from his first wife, however, before the deposit of the decree money, had filed an application in the court below on the 17th of July, 1961, stating therein that the petitioner's father had made an oral gift of the entire amount in question on the 10th of November, 1960. He, therefore, prayed for payment to him of the money in question. On deposit of the amount in court by the State of Bihar, the court below recorded an order on 5-9-61, that the entire money had been deposited in pursuance of the award made on a reference under Section 18 of the Land Acquisition Act as modified by the decree of the High Court; hence a full satisfaction was recorded. On the petition of the petitioner being moved by his lawyer, it was ordered that it was not necessary to proceed with the claim of the petitioner. On the 18th of September, 1961, Sk. Abdul Latif filed an affidavit and a petition stating therein that by registered sale deed dated the 10th July, 1961, he had assigned the amount payable to him under the High Court decree in favour of the opposite parties; that he had no concern with the decretal money; and that the whole of the amount payable under the decree should be paid to them. This petition was rejected by order dated 18-9-61 as no Vakalatnama had been filed nor had the assignees made any petition for payment of the money. On 22-9-61, the opposite parties filed an application in the court below for payment of the decretal amount to them stating therein that they had purchased the decree passed by the High Court in F.A. 311 of 1952 by a registered sale deed dated 10th of July, 1961 executed by the awardee, Sk. Abdul Latif. The sale deed was also filed along with the petition. Certain defects were pointed out by the order dated the 22nd of September, 1961, and it was directed that orders would be passed on the said application when Abdul Latif would present himself in court. The petitioner filed a rejoinder application on the 26th of September, 1961, stating that, after the oral gift of the decree in his favour, Abdul Latif could not assign it to the opposite parties by registered sale deed which was also attacked as invalid on certain grounds. By the rejoinder petition, it was ultimately prayed that the petition of the opposite parties be rejected and the amount be paid to the petitioner. By another petition filed on the same day, the petitioner stated that he had attacked the sale deed as being invalid on the ground that Abdul Latif had not executed it as he was not possessed of senses and was invalid on the date of execution of the sale deed. In this petition, a prayer was made by the petitioner in the following words :

(2.) The Stamp Reporter took an objection that the order in question had the force of a decree and a regular first appeal ought to have been filed under Section 54 of the Act and that a civil revision was not maintainable. The Civil revision came up for admission before me sitting singly on the 10th of February, 1962. I admitted the application as a civil revision subject to the right of the other side to contest its maintainability at the time of the final hearing. As the points involved were not free from difficulty, I directed the civil revision to be placed for final hearing before a Division Bench along with the stamp report. The case came up for final hearing before this Bench.

(3.) No objection was raised on behalf of the opposite parties as to the maintainability of the civil revision. We, therefore, proceeded to hear it as such. Having considered the stamp report, I am of the view that the order in question has not the force of a decree as it is a mere direction by the court below after the deposit of the decree money for its payment to the assignees of the decree.