A and J Main and Co. Engineers Pvt. Ltd. vs State of West Bengal

Bhaskar Bhattacharya, J.—The appellant in an appeal against award passed by the Land Acquisition Judge has prayed for leave to proceed with execution during the pendency of this appeal.

Being dissatisfied with the amount of compensation awarded by the Land Acquisition Court, the appellant has preferred the present appeal. The State-respondent has neither preferred any appeal against such award nor has it filed any cross-objection.

At this stage, the appellant has come up with this application thereby praying for leave to proceed with execution of the award impugned subject to his right in this appeal.

This application is opposed by Mr. Biswas, the learned Advocate appearing on behalf of the State-respondent. Mr Biswas contends that as the appellant is dissatisfied with the award and has preferred this appeal, in the same breath, it cannot pray for execution of the self-same award. According to Mr. Biswas, if a decree-holder is partly dissatisfied with the decree and prefers an appeal and the said appeal is not disposed of, the decree cannot be executed.

The aforesaid contention of Mr. Biswas is opposed by Mr Basu, learned Advocate appearing on behalf of the appellant. Mr. Basu contends that in the CPC there is no bar in proceeding with execution of a money decree where the plaintiff is dissatisfied with the amount of money decreed in his favour. Mr. Basu subraits that by the execution the claim of his client will be partly satisfied and the appellant will wait for the further decree in this appeal if passed in favour of the appellant. He, therefore, submits that there is no bar in proceeding with the execution.

After hearing the learned Counsel for the parties and'' after going through the provisions of execution contained in the CPC we find that there is no impediment in executing a money decree at the instance of plaintiff, even if, such a plaintiff is dissatisfied with the amount decreed and he has preferred an appeal which is pending. The appeal, in our view, that has been preferred by plaintiff is against the portion of his claim which has been refused. He has no grievance against the part of the claim granted in his favour; but he is dissatisfied only against that part of his claim which has been turned down by the learned Trial Judge and as such, he has paid Court-fees in this appeal not on the full amount claimed but on the amount which has been refused. In such a case, the law does not stand in the way of the appellant in executing the decree that has been granted without prejudice to his right in the appeal that is pending. In the event this appeal is allowed in the long run and the amount of award is enhanced, the appellant will further proceed with the execution for realisation of the enhanced amount if the awarded part is already recovered.

We, thus, find that law having created no hindrance in executing a money decree at the instance of plaintiff when he has preferred appeal for enhancement of the amount, no question of granting any leave arises. It is needless to mention that the decree holder appellant is entitled to execute the decree, without prejudice to his rights and contentions in this appeal. The application is, thus, disposed of. In the facts and circumstances, there will be, however, no order as to costs.

Rajendra Nath Sinha, J.

I agree.