C.R.No.7578 of 2010 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.7578 of 2010 Jagdish Lal and others ....Petitioners Versus State of Haryana and others ....Respondents And C.R.No.7866 of 2010 Jagdish Lal and others ....Petitioners Versus State of Haryana and others ....Respondents Date of Decision: 26.4.2011 CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. S.S. Narula,Advocate for the petitioners. JASWANT SINGH, J This order shall dispose of above mentioned two petitions bearing C.R.No.7578 of 2010 and C.R.No.7866 of 2010 since common questions of law and facts are involved in the same. Facts are being taken from C.R.No.7578 of 2010. By filing the present petitions under Article 227 of the Constitution, petitioners have prayed for setting aside the impugned order dated 17.8.2010 (P.3) passed by the learned Additional District Judge, Sonepat whereby the execution petition has been dismissed being fully satisfied while holding that the decree holder/petitioners C.R.No.7578 of 2010 #2# have already received the amount of compensation as per their entitlement. Facts of the present case have neither been properly reflected in the revision petition nor in the impugned order. However, from the perusal of paper book, it reveals that the land measuring 6 Bigha 0 Biswa (6050 sq. yards) of the petitioner was acquired by the respondents for setting up a General/Civil Hospital in District Sonepat under the provisions of Land Acquisition Act, 1894 (for short “1894 Act”). It transpires that the learned Collector paid an amount of Rs.31740/- as per its award and in an RFA compensation at the rate of Rs.40/- per sq. yards along with other statutory benefits admissible under the 1894 Act was awarded by this Court in favour of the petitioners. An execution petition was filed by the petitioner, which was decided by the learned Additional District Judge vide order dated 23.12.2005 (P.1) in which it was observed that the petitioner/decree holders had already received an amount of Rs.1,03,115/- in excess and as such they were directed to refund the same to the JD-respondents. Aggrieved against the order dated 23.12.2005, a revision petition was filed before this Court, which was disposed of with a direction to the Executing Court to decide the matter afresh in view of the judgment of Hon'ble Supreme Court reported as Gurpreet Singh v. Union of India, 2006 (8) SCC 457. In these circumstances, the matter has been decided afresh by the learned Executing Court while dismissing the execution petition vide the impugned order dated C.R.No.7578 of 2010 #3# 17.8.2010 (P.3), hence the present petition. Learned counsel for the petitioner argues that the learned Executing Court has gone wrong while dismissing the execution petition and passing the impugned order. It is further argued that in view of Gurpreet Singh's case (supra), the petitioners are entitled to the amount claimed in the execution petition. After hearing learned counsel for the petitioners and perusing the paper book, this court does not find any merit in the petitions and the same deserve dismissal. A perusal of the impugned order makes it abundantly clear that in this case the JD-respondents furnished the detail as to on what count, the payments were being made for the satisfaction of the decretal amount. It is also undisputed that the amount was accepted by the petitioners-decree holders towards the principal upto the year 1988- 1989 without any objection before the Executing Court, therefore, now at this stage it is not open for them to adjust the said amount against the payment of costs and interest. The details furnished by the JD- respondents was already available on the court file for the kind perusal of the learned Executing court and this fact is not disputed by the learned counsel for the petitioners either in the revision petition or in his arguments. It is also an admitted fact that on earlier occasion, the execution petition filed by the petitioners was withdrawn for the reason best known to them and there is no explanation in this regard in the C.R.No.7578 of 2010 #4# present petition. The law is well settled by Hon'ble Supreme Court that the decree holders will not be entitled to appropriate the amount already received by them in the partial satisfaction of the award. It is not the sweet will of the decree holders to re-adjust the amount already accepted by them for the satisfaction of decretal amount against the payment of costs and interest. This legal preposition is no longer res integra in view of the judgment of Hon'ble Supreme Court in Gurpreet singh's case (supra) and para Nos.39,40,41,42 & 43 of the same are reproduced hereunder: “39. Though, a decree holder may have the right to appropriate the payments made by the judgment-debtor, it could only be as provided in the decree if there is provision in that behalf in the decree or, as contemplated by Order XXI Rule 1 of the Code as explained by us above. The Code or the general rules do not contemplate payment of further interest by a judgment debtor on the portion of the principal he has already paid. His obligation is only to pay interest on the balance principal remaining unpaid as adjudged either by the court of first instance or in the court of appeal. On the pretext that the amount adjudged by the appellate court is the real amount due, the decree-holder cannot claim interest on that part of the principal already paid to him. Of course, as indicated, out of what is paid he can adjust the interest and costs first and the balance towards the principal, if there is a shortfall in deposit. But, beyond that, the decree holder cannot seek to re-open the entire transaction and proceed to recalculate the interest on the whole amount and seek a re-appropriation as a whole in the light of the appellate decree. 40. It is true that the understanding of the expression "compensation awarded" for the purpose of Section 28 of C.R.No.7578 of 2010 #5# the Act in Prem Nath Kapur (supra) was modified. To that extent one strand of reasoning in Prem Nath Kapur (supra) also stands discredited. But as we see it, on the question of appropriation, the decision in Sunder (supra) does not have such an impact as to compel us to jettison the reasoning adopted in Prem Nath Kapur (supra). Slightly deviating from the reasoning in Prem Nath Kapur (supra) we have indicated earlier that even going by Order XXI Rule 1 of the Code, the position would be as envisaged in Prem Nath Kapur (supra). That apart, we are inclined to respectfully agree with the reasoning in Prem Nath Kapur (supra) that on the wording of Section 34 and Section 28 of the Act read with and understood in the light of the stages of the award of compensation, the question of appropriation would be at different stages and a decree holder would not be entitled to reopen the entire transaction to claim a reappropriation of the amounts already received by him and appropriated at that particular stage. The reliance on the doctrine of merger does not enable the decree-holder to get over the scheme adopted by the Act. 41. Prem Nath Kapur (supra) also indicates that when an award-decree is passed specifying the amounts under different heads like the amount under Section 23(1), the amount under Section 23(2), the amount under Section 23 (1A) and the interest under Section 28 and the judgment debtor makes a deposit of specified sums under these different heads, it will amount to the judgment debtor intimating the decree holder as to how the sum deposited is to be applied in discharge of the obligation of the judgment debtor. Once a decree holder receives the payment of the sums thus deposited, he would be accepting the appropriation made by the judgment debtor under the award decree on the scheme of the Land Acquisition Act. This part of the reasoning in Prem Nath Kapur (supra) is, of course, also based on the reasoning that there is some C.R.No.7578 of 2010 #6# inconsistency in Order XXI Rule 1 of the Code and the scheme of the Act. Prem Nath Kapur (supra) also indicates that when the decree itself specifies the amount payable under different heads (the decree has to do so under Section 26 of the Act) and amounts are deposited towards those different heads, the appropriation would be on the basis of the direction under the decree which must be taken to be one for crediting the various sums paid under particular heads. On the scheme of the Act, especially the wording of Section 34 and Section 28 of the Act it is not possible to say that the said approach made in Prem Nath Kapur (supra) is erroneous or is unreasonable or is not a line of approach that is not warranted. Therefore, when the judgment debtor State makes a deposit along with the calculation appropriating distinct sums towards various heads of compensation as awarded by the reference court or by the appellate court in the appellate decree, and the amount is received by the decree holder, the decree holder must be taken to be not entitled to seek an appropriation as if the judgment debtor has not made any intimation and that he is entitled to appropriate at his volition. Considering the scheme of compensation under the Act in the context of the specific nature of the items specifically referred to in Section 23 of the Act, we are of the view that the approach adopted in Prem Nath Kapur (supra) is justified. A reappropriation by seeking to reopen the satisfaction already rendered might result in interest being made payable even on that part of the principal amount that had already been deposited and received by the decree holder and that would be in the realm of unjust enrichment. 42. What is to happen when a part of the amount awarded by the reference court or by the appellate court is deposited pursuant to an interim order of the appellate court or of the further appellate court and the awardee is given the liberty to withdraw that amount? In such a case, the amount would C.R.No.7578 of 2010 #7# be received by the decree holder on the strength of the interim order and the appropriation will be subject to the decision in the appeal or the further appeal and the direction, if any, contained therein. In such a case, if the appeal is disposed of in his favour, the decree holder would be entitled to appropriate the amount already received by him pursuant to the interim order first towards interest then towards costs and the balance towards principal as on date of the withdrawal of the amount and claim interest on the balance amount of enhanced compensation by levying execution. But on that part appropriated towards the principal, the interest would cease from the date on which the amount is received by the awardee. Of course, if while passing the interim order, the court had indicated as to how the deposited amount is to be appropriated, that direction will prevail and the appropriation could only be done on the basis of that direction. 43. Thus, on the whole, we are satisfied that the essential ratio in the Prem Nath Kapur (supra) on appropriation being at different stages is justified though if at a particular stage there is a shortfall, the awardee decree holder would be entitled to appropriate the same on the general principle of appropriation, first towards interest, then towards costs and then towards the principal, unless, of course, the deposit is indicated to be towards specified heads by the judgment debtor while making the deposit intimating the decree- holder of his intention. We, thus, approve the ratio of Prem Nath Kapur (supra) on the aspect of appropriation.” Keeping in view the facts and circumstances discussed hereinabove, this Court finds no illegality or perversity in the impugned order dated 17.8.2010 (P.3) passed by the learned Additional District Judge, Sonepat warranting interference under Article 227 of the C.R.No.7578 of 2010 #8# Constitution. Dismissed. However, it is made clear that there shall be no recovery from the petitioners of any excess amount, if already paid by the JDs. April 26, 2011 ( JASWANT SINGH ) manoj JUDGE