Second Appeal No. 916 of 1910. Case: Nathubhai Narandas Vs Manordas Laldas. High Court of Bombay (India)
| Case Number | Second Appeal No. 916 of 1910 |
| Judges | Russell and N.G. Chandavarkar, JJ. |
| Issue | Civil Procedure Code (Act V of 1908) - Sections 96, 100; Land Acquisition Act (I of 1894) - Sections 53, 54 |
| Citation | 1912 (14) BomLR 325 |
| Judgement Date | November 30, 1911 |
| Court | High Court of Bombay (India) |
Judgment:
Russell, J.
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This case raises an important and difficult question. Two references, Nos. 5 and 7 of 1904, under the Land Acquisition Act I of 1894, were decided by the Assistant Judge of Thana, who in No. 5 ordered that the whole amount of the award, viz., Rs. 2005-0-5 should be paid to the mortgagee Manordas Laldas, each party bearing his own costs, and in No. 7 confirmed the Collector's award, Manordas having objected that the amount awarded by the acquiring officer was too little.
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Appeal No. 328 of 1909, of the District File, was decided by the acting District Judge of Thana who dismissed it with costs.
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The above second appeal has been filed in this Court and the preliminary objection is raised by Mr. Rao, for the respondent No. i, that no second appeal lies, and he relies in the first place upon Section 54 of the Land Acquisition Act. That provides that:-
Subject to the provisions of the Code of Civil Procedure applicable to appeals from original decrees, an appeal shall lie to the High Court from j the award or from any part of the award, of the Court in any proceedings under this Act.
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Now Section 96 of the Code of Civil Procedure (V of 1908), first clause, is as follows:-
Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree, passed by any Court, exercising original jurisdiction to the Court authorized to bear appeals from the decisions of such Court.
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The extreme difficulty in this case arises in consequence of two decisions of the Bombay High Court, first, Nilkanth v. Collector of Thana ILR (1897) 22 Bom. 802, decided under the former Land Acquisition Act X of 1870, where it was held that that Act did not provide for or contemplate an award for compensation being enforced against the Collector by execution proceedings, and there is no general law which enables a civil Court to enforce such a statutory liability, when imposed upon a Collector or other civil officer by means of execution proceedings without a suit. And Farran C. J. at p. 808 says: " In the above view it is unnecessary for me to consider whether an award made under the provisions of Act I of 1894 can be enforced against the Collector by execution proceedings. That is a complex problem which has been set by the Legislature for solution by the Judges. Such problems often arise when the provisions of one Act are introduced by reference into another and incorporated with it." We may mention in passing that we entirely agree with that remark, and this is the second occasion, within a short time, on which we have had to animadvert upon this mode of Legislation.
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That case was expressly followed in the case of Ladha Ebrahim & Co. v. The Assistant Collector of Poona (1910)12BomLR839 where Scott C. J. says: " With regard to the first question we think the reasoning of the majority of the Court in Nilkanth v. Collector of Thana ILR (1897) 12 Bom. 802 sufficiently establishes that an award under...
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