BANSIDHUR MARWARI Vs. SECRETARY OF STATE FOR INDIA

JUDGEMENT

(1.) This is an application for extension of time under Section 5, Limitation Act, for filing an appeal to this Court against an order of the Land Acquisition Judge dismissing the petitioner's application for restoration of his previous application dismissed for default. It appears that on a reference by the Collector the matter came up before the Land Acquisition Judge and on the 21 May 1924 it was dismissed for default in the absence of the petitioner. On the 11 June 1924, the petitioners applied under Order 9, Rule 9, for restoration of the case. This application was also dismissed for default on the 10 January 1925. On the 6 March 1925, the petitioners applied before the Land Acquisition Judge for review of his order, dated the 10 January 1925 That application for review was dismissed on the 26 June 1926.

(2.) The petitioners thereafter presented a memorandum of appeal to this Court on the 30th July 1926 directed against the order of the 10 January 1925 and almost simultaneously made the present application for extension of time under Section 5 of the Limitation Act. If there were no objection to the maintainability of the appeal I would have felt disposed to excuse the time covered by the proceedings for review of judgment in the Court below. But the learned Government Pleader who appears on behalf of the opposite party argues that the order against which the petitioners seek to appeal to this Court is an order from which no appeal lies under the Land Acquisition Act to this Court. Our attention has been drawn to Section 54 of the Land Acquisition Act. That section says that an appeal from an order of the Land Acquisition Judge shall only lie to this Court from the award or any part of the award. The learned Advocate who appears for the petitioners argues that the wording of that section is wide enough to include an appeal from an order such as the one from which he is appealing; and he bases his contention on the introduction of the words "in any proceeding" into the section by the Act of 1921. The section as it stood before 1921 read as follows: Subject to the provisions of the Civil P. C. applicable to appeals from original decrees, an appeal shall lie to the High Court from the award or from any part of the award of the Court in any proceeding under this Act.

(3.) The amendment or alteration of the section by the Act of 1921 simply amplifies its provision by making it explicit and adding the right of appeal from the High Court to the Privy Council. On a comparison of the wordings of the repealed section and of the present section it seems that the present section is more stringent in its provisions as it indicates that an appeal shall lie only from the award or any part of the award. The addition of the word "only" after appeal must be taken to signify that the Legislature intended that an appeal should not lie from any order unless such an order can be construed as an award.