GOVERNMENT OF BANGLADESH Vs. LUXMI BIBI

JUDGEMENT

(1.) Government is the appellant in this appeal by special leave. The main question raised here is whether the limitation for filing an appeal against a decree will run from the date of the decree or from the date on which the decree has been amended on an application under section 152 of the Code of Civil Procedure, briefly the "Code". Contention of the learned Additional Attorney-General is that when a decree has been amended, the original decree does not exist and the decree that has been amended is the only decree in the eye of law and hence limitation will start from the date of the amendment. But reply to is contention given by Mr. Giasuddin Bhuiyan, the learned Advocate for the respondents, is that on application under section 152 of the Code the original decree remains intact but only some clerical mistakes or accidental omissions are corrected, and as such, this date of correction, whether it is called an amendment or correction, cannot be the date of the decree for the purpose of challenging it in appeal. Facts leading to this question are given below.

(2.) In LA Case No. 41/64-65 the Deputy Commissioner, Dhaka, requisitioned the respondents' land measuring about 1.23 acres along with lands of some other persons, on 25 May 1967 under section 3 of the Emergency Requisition of Property Act, 1948 (Act XIII of 1948), briefly the "Act", and later on acquired it for extension of the Second Capital at Sher-e-Bangla Nagar. Case of the appellant-government is that by serving a notice under section 5(1)(a) of the Act on 6 June 1967 they proceeded to acquire the land the possession of which has already been Liken. The LA Collector assessed compensation for the land at Taka 1.10 lakh (and some odd) out of which the respondents-land owners received Taka 1.08 lakh (and some odd) in the period between 1968 and 1973. The Government issued a Notification on 26 July 1983, which was published in the Gazette on 11 August 1983, under section 5(7) of the Act finally acquiring the land. The land owners not being satisfied with the amount of compensation as assessed by the Collector prayed for arbitration; accordingly, the matter went to the Subordinate Judge, Dhaka, who was an Arbitrator appointed by the Government under section 7(b) of the Act. Thus Arbitration Case No. 333 of 1984 started. The Arbitrator, after hearing the parties, gave his award on 28 May 1985. In this award compensation determined was Taka 37.71 lakh and some odd in addition to the amount already paid. Respondents-land owners filed Execution Case No. 24 of 1986 for realisation of the amount of compensation and in that execution proceedings the appellant appeared and prayed for time to pay the decretal amount. But on 5 May 1987 the appellant filed an application to the Arbitrator for correction of the decree (award) under section 152 of the Code pointing out that in the judgment of the Arbitrator, the area of the land acquired was shown to be 1.35 acres instead of 1.23 acres, and, as such, the award needed to be corrected by reducing the amount. The Arbitrator, by an order dated 10 March 1990, corrected the award reducing the amount of compensation by about four lakh of taka, that is, to Taka 33,63,958.22 (thirty-three lakh and odd). The appellant then filed an appeal, FMA No. 224 of 1990-before the High Court Division on 26 May 1990. The High Court Division found that the appeal was barred by limitation since it was not filed within 60 days from the date of the decree that is, 28 May 1985, and dismissed the appeal on this ground, by a judgment dated 29 October, 1992.

(3.) Leave was granted by us to consider the question, as already stated at the beginning, whether the limitation will start from the date of the original decree (28.5.85) or from the date of its correction (10.3.90), and also to consider whether the second contention of the appellant that the decree itself is void and nullity, in that it was made in violation of the mandatory provision of section 7(e)(i) of the Act. This section provides that the Arbitrator in making an award shall, among other things, take the average market value of the land of similar description and with similar advantages in the vicinity "during the twenty-four months preceding the date of service of notice under section 5(1)(a)" of the Act; but in this case the Arbitrator had taken the average value of land during the twenty-four months preceding the date of the Notification under section 5(7) of the Act for final acquisition of the land.