Bangladesh Vs. Luxmi Bibi and others., 46 DLR (AD) (1994) 158

Case No: Civil Appeal No. 63 of 1993

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Citation: 46 DLR (AD) (1994) 158

Case Year: 1994

Appellant: Government of Bangladesh

Respondent: Luxmi Bibi and others

Subject: Procedural Law,

Delivery Date: 1994-4-28

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Shahabuddin Ahmed CJ
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J.
 
Bangladesh
 ……………. Appellant
Vs.
Luxmi Bibi and others
…………..... Respondents
 
Judgment
April 28th, 1994.
 
Code of Civil Procedure (V of 1908)
Section 152
The scope and purpose of this section are very limited. The decision on a successful application under this section cannot materially affect the decree. ….. (4)
Section 152
By filing an application for correction the statutory period for filing an appeal against the decree cannot be got extended. …. (5)
 
Cases Referred to-
Ishaque Vs. Bangladesh 43 DLR (AD) 28; Tincowri Halder Vs. Nani Gopal Mondal, AIR 1960 Cal. 258; Kedar Nath Vs. Golam Hossain 40 CWN 83; Ramji Lal and ors. Vs. Giani and another, AIR 1921 Lab 250; Abdul Gafur Vs. Bangladesh 42 DLR (AD) 100.
 
Lawyers Involved:
AW Bhuiyan, Additional Attorney‑General, (Sharifuddin Chaklader, Assistant Attorney‑ General, with him), instructed by AW Mallick, Advocate‑on‑Record ‑ For the Appellant.
Abdur Rashid Gazi, Advocate, Supreme Court, instructed by MG Bhuiyan, Advocate‑on‑Record ‑For the Respondents.
 
Civil Appeal No. 63 of 1993.
(From the judgment and order dated 30 October 1992 passed by the High Court Division, Dhaka in First Miscellaneous Appeal from Original Order (Award) No. 224 of 1990).
 
JUDGMENT
 
Shahabuddin Ahmed CJ.
 
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.
 
4. As it has been stated herein before, the decree that is, the award in this case, was made on 28 May 198' and this decree is appealable. If any appeal challenging this decree was to be filed, it should have been filed within 60 days; but it was filed about 41/2 years beyond this period. The learned Additional Attorney-General has argued that since the govern­ment filed an application under section 152 of the Code for amendment of the decree and accordingly the decree was amended on 10 March 1990, this date should be the date of the decree as it stood amended and computing the limitation from this date excluding the period spent in receiving a copy of the amended decree from the Arbitrator the appeal was  within time. But the question, is what has been done or what can at all be done on an application under section 152 of the Code. The scope and purpose of this section are very limited and the decision on a successful application under this section cannot materially affect the decree except correcting some insignificant errors or accidental omissions having nothing to do with the merit of the decree itself.
This section reads thus:
 
"152. Amendment of judgments, decrees or orders‑Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accident at slip or omission may at any time be corrected by the Court either of its own motion or on an application by any of the parties."
 
In their application under this section the appellant simply pointed out that by mistake 12 decimals of land had been shown to have been acquired in excess of the actual area of 1.23 acres, and hence the compensation for this excess land should be deducted; and this was actually done by correcting the decree that is, by reducing the amount to Taka 33.66 lac (and some odd). But die appeal is riot directed against this order of correction; it is directed against the whole decree challenging its very foundation on the ground that it is a nullity because it has been passed on the average value of land during the twenty‑four months preceding die date of final acquisition in 1983, whereas, the law says that the period of twenty-four months shall precede tile date of notice under section 5(1) which is, in this case, 6 June 1967. This ground as to nullity Of tile decree itself cannot be a matter for determination on all application under section 152 of the Code, nor any such ground was taken in tile application under section 152 in this case, The only remedy against this decree dated 28 May 1985 oil the ground of nullity was by way of an appeal and that appeal should have been filed within 60 days. In that appeal the ground as to clerical error or accidental omission in the decree could have also been taken.
 
5. There are other aspects of the matter which are also heavily against the appellant‑ government. According to their own statement, the appellant received a copy of the award on 16 November 1985 and the period of 60 days started since then. If they wanted to have the decree corrected in respect of the amount of the decree only, they could have filed the application under section 152 within this period of 60 days; but they did not; they rather filed it after about one year seven months, that is oil6.5.87. By this time an execution proceeding, which had been instituted by the decree holder, was going on. In the execution proceeding the appellant prayed for time to pay up the decretal amount. There was nothing to prevent the appellant from filing the appeal in time and then from getting the operation of the decree stayed, and if the execution process had already started, to have that process stayed. The learned Additional Attorney-General contends that there is no limitation for filing an application for correction of a decree under section 152. Yes, there is no such limitation, and an application for correcting a decree may be filed even when an appeal is pending against the decree or even when appeal has been disposed of without noticing the clerical or accidental error in the decree. But by filing such an application for correction the statutory period for filing an appeal against the decree cannot be got extended. If such a practice is allowed, execution of a decree may be forestalled for years together under the camouflage of an application for correction of a clerical mistake.
 
6. A similar question arose in the case of Kedar Nath Vs. Golam Hossain, 40 CWN 83, and in that case a Single Judge of the Calcutta High Court held that "when a decree is amended under section 152 of the Civil Procedure Code, the amendment does not give a fresh start of limitation to file an appeal from the date of the amendment; the point remains as before the date of the decree". It was also observed that when an appeal is filled beyond time, time can only be extended on an application under section 5 of the Limitation Act.
 
7. In the instant case before us the question of extension of the period of limitation for filing an appeal cannot arise in view of section 29 of the Limitation Act. This is because tile proceedings in which this appeal has arisen are governed by a special law namely, Act XIII of 1948, which has prescribed the period of limitation and, as such, section 5 of the Limitation Act is not applicable here. This question has been already decided by us in the case of Ishaque Vs. Bangladesh 43 DLR (AD) 28.
 
8. The learned Additional Attorney‑General has referred to the case of Tincowri Halder Vs. Nani Gopal Mondal, AIR 1960 Cal. 258. This case was decided by a  Division Bench and the question raised in that case was whether the limitation for appeal against a decree would start from the date on which it was amended under section 151 or section 152 of the Code or from its original date. The decision in the earlier case of Kedar Nath Vs. Golam Hossain 40 CWN 83 was also considered in that case and the decision therein was modified instead of being overruled. The decisions of the Division Bench are the following: (1) If the decree is amended on an application under section 151 or section 152 and the appeal is confined to the amended portion only the stating point would be the date of amendment. (2) If the appeal is dire0ted against the decree as 4 stood prior to the amendment, the starting point would be the date of original decree.
 
9. The learned Additional Attorney‑General has made half-hearted attempts to show that the instant appeal is directed against the amended portion of the decree and, as such, limitation will start from the date of amendment. This is a futile attempt, for, the appeal is found directed against the very foundation of the original decree, that is, the compensation has been determined on the basis of the value of land during the twenty-four months prior to the date of the final acquisition in 1983 and not prior to the date of the notice under section 5(1) in 1967. Whether the decree was corrected or not in respect of the decretal amount under section 152, the ground for the appeal, the very basis of determination of the compensation, could not be gone into on an application under section 152. Therefore, the decision in this later case as cited does not help the appellant in any way.
 
10. In this case as cited by the learned Additional Attorney‑ General, it was served that in the case of a re‑hearing on a successful application for review, the starting point of limitation would be die date of the new decree drawn up after the review, whether the original decree is modified or reaffirmed. We find nothing to disagree with this view, for in the case of review of a decree under Order 47 of the Code the date of the decree will always be the date on which die decree is reviewed. For, the scope of an application for review under Order 47 is quite different from, and much wider than, that of an application under section 152. In exercise of power of review the Court which has made a decree may amend or modify it in any way and to any extent which it thinks proper on the basis of the record of the case, but in the case of an application under section 152 the Court's power is limited only to correction of any clerical error or accidental omission.
 
11. The learned Additional Attorney‑General has referred to the case of Ramji Lal and ors. Vs.Giani and another, AIR 1921 Lah 250, in which it has been found that the trial Court, though it purportedly acted under section 152, it in fact, acted under Order 47; he has therefore submitted that in the instant case we should, treat the appellant's application under section 152 before the Arbitrator as an application for review under Order 47. Our answer is clearly in the negative. In the Lahore case the application for correction of clerical errors was not limited to mere correction, but "the whole system of calculation adopted by the Court in its judgment" was challenged. We do not understand how an application for the correction of mere arithmetical error or any accidental slip can be treated as an application for review. However, facts of that case are quite distinguishable from that in the instant case. The learned Additional Attorney‑General has also referred to section 151 of the Code and has argued that in the case of a successful application thereunder for correction of a decree, the date of amendment of the decree under this section will be the date of the decree and not its original decree. But how these two sections, 151 and 152, can be taken as synonymous? Section 151 simply confirms the Court's inherent power and this power cannot be exercised where alternative remedies, such as remedies by way of appeal, revision or review are available. An application under section 151 in such a case is not maintainable. In the instant case, the ground taken in the appeal could have been taken in the application for mere correction under section 152. From whichever angle the question is considered, we are firmly of the view that the date of correction or amendment of the decree under section 152 cannot be the starting point of limitation for the purpose of filing an appeal against the decree, and that we find that the High Court Division rightly decided the question holding that the appeal is badly barred by limitation of about four years six months.
 
12. The second question is whether the award is a nullity and void ab initio in that the Arbitrator while determining the value of the land took into consideration the average value of land during the twenty‑four months preceding the date of final acquisition in August 1983, whereas according to section 7(e) of the Act, this period of twenty‑four months shall precede the date of notice under section 5(1), in this case 6 June, 1967. The law is very clear on this point and it is that the period of twenty-four months shall be the period preceding the date of notice under section 5(1). But the Arbitrator has given reasons for not doing so. He has taken into notice this position of law, but has observed that the appellant could not show or produce any copy of the notice under section 5(1) of the Act. The respondents challenged the appellant's claim that any notice was published under section 5(1) or served under section 5(3) of the Act. But it has been admitted that the land was requisitioned and possession thereof was taken over some time in 1967 and that the Deputy Commissioner (sometimes referred to as Collector) made an assessment of compensation at Taka 1.10 lakh, out of which Taka 1.08 lakh was received by the respondents. But neither the government, nor the land‑owners stated before us on what date the Deputy Commissioner had made this assessment except stating that out of the total amount assessed, Taka 1.08 lakh was received in the period from 1968 to 1973. No paper was produced to show whether this assessment was a provisional one under section 5B of the Act. If it were provisional, when the final assessment was made also could not be ascertained. From the papers submitted by the appellant, we find only one assessment was made, out of which the major part was received by instalments in the four years following the requisition and possession. If it were the full and final assessment, how could it have been made long before the final acquisition by Notification No. DA‑37/80/530 Acqn. dated 26 July 1983. In these circumstances, the learned Arbitrator took the average value of the land during the twenty‑four months preceding the date of actual acquisition in 1983. Considering the fact that the value of the land increased at very high rates since the requisition in 1967, the Arbitrator had taken this period for determining the compensation. It has been Submitted by the respondents that from ill‑motive the concerned officials of the Land Acquisition Department of the appellant kept the matter pending neither filing any appeal in time, nor producing the necessary documents including the notice under section 5, if any, and for this delay they (respondents) had filed a writ petition, WP No. 1004 of 1983‑seeking a direction Upon the appellant to issue notice for acquisition. The result of this writ petition was that the Rule issued thereon was made absolute by an order on 11 March 1984 and the appellant was directed to issue notice for acquisition of the land. This fact has not been denied by the appellant. It is thus found that though some compensation was paid to the respondents in the years following the requisition for the purpose of acquisition the matter of acquisition was not finalised, and that, for finalisation of the matter of acquisition, the respondents had to file a writ petition. In these circumstances, the Arbitrator, in the absence of any copy of the notice under section 5(1) and also in the absence of any evidence that the notice was published under section 5(1) or serve under section 5(3), took the average of the value during the twenty‑four months preceding the date of acquisition. Legally, this action is not defendable; in a previous case, Abdul Gafur Vs. Bangladesh 42 DLR (AD) 100, we also made it clear that the period of "twenty‑four months" would precede the date of notice under section 5(1). But the question is whether, in the circumstances of this case, the award can be held to be null and void. Our answer is clearly in the negative. In this case, the notice for acquisition under section 5(1) was issued in 1967 found from a copy of the notice which has been produced before us at the time of hearing of this appeal. The learned Additional Attorney‑General has explained that this copy was not traceable when the matter was dealt with by the Arbitrator and then by the High Court Division. Be that as it may, when compensation was assessed whether provisionally or not, the bulk of the money of compensation was received in the years following 1968. It can be presumed that notice was issued under section 5(1) some time in 1967‑68.  But final acquisition was made when the notification dated 26 July 1983 was issued and published under section 5(7). In the previous case of 42 DLR, we observed that though there is no time limit prescribed for final acquisition under section 5(7) but there should be some proximity between the date of notice under section 5 (1) and that under section 5(7). In that case, the Arbitrator had taken the average value of the land at the point of time in‑between the date of notice under section 5(1) and the date of final acquisition under section 5(7), and on that basis made the award which was not challenged by either of the parties. In these circumstances, this Court did not interfere with the award when it was bright to this Court in appeal from the High Court Division's order maintaining the award.
 
13. Result of these discussions is that the impugned award before us is not a nullity and the, contention of the learned Additional Attorney-­General in this respect is rejected.
 
14. The learned Additional Attorney‑General has lastly referred to Article 104 of the Constitution of Bangladesh which provides for doing "complete justice in any cause or matters pending before it" and has submitted that the impugned award for Taka 33.66 lakh (and odd) is very excessive. We find the bulk of the amount of compensation as assessed in the years 1967‑68 was received within 3 or 4 years. So it cannot be said that the respondents were totally deprived of' their right to compensation. Had the acquisition been finalised and the matter been brought ultimately to the Arbitrator during the period, the balance due to the respondents would not have been a big. But whatever the balance might have been, the respondents were deprived of it for about 16 years when the final acquisition was made and the appellant, instead of filing, appeal against the award, adopted dilatory tactics and thereby passed about five years' time more, during which the respondents remained deprived of their dues. Taking all these facts and circumstances into consideration and though both the grounds taken by the appellant before us have failed, we think that ends of justice of the matter will be met if the amount of compensation given by the Arbitrator, and upheld by the High Court Division, is reduced by 50%. We, therefore, reduce the amount of the award to Taka 17 (seventeen) lakh, minus the amount already drawn by the respondents. The amount must be paid to the respondents within three months from the date, failing which, this amount will carry interest at the rate of 10% till it is realised. Subject to this reduction in amount and direction for payment, the appeal is dismissed without, however, any cost.
 
Ed.