SUSHIL KUMAR SEN versus STATE OF BIHAR

Citation: [1975] 3 S.C.R. 942 · Decided: 17-03-1975 · Supreme Court of India · Bench: A.N. RAY · Disposal: Appeal(s) allowed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

SUSHIL KUMAR SEN 
v. 
STATE OF BIHAR 
March 17, 1975 
[A. N. RAY, C.J., K. K. MATHEW AND v. R. KR!SHNA,lYER, JJ.] 
Practice-Appellate court holding order 011 review 1101 maintainab/e-Efject of. 
The appellant's land was acquired and the Land Acquisition Officer awarded 
-compensation at the rate of Rs. 14 /- per katha. The appellant applied for refer-
ence under s. 18 of the Land Acquisition Act and on 18-8-1961 the Additional 
District Judge held that he was entitled to compensation at Rs. 200/- per katha. 
The respondent State appEed for review of the judgment under 0.47, r.1, C.P.C. 
On 26-9-1961 the Additional District Judge allowed the application for review 
and reduced the compensation to Rs. 7 5 /-· per katha. 
The respondent filed 
an 
appeal to the High Court purporting to be against both the decrees .dated 18-8-
1961 and 26-9-1961 but in fact was only against the latter, and the appellant filed 
a cross appeal challenging the maintainability of the review petition before the 
Additional District Judge. 
The High Court held that the Addi. District· Judge 
was wrong in entertaining the review, but on merits the High Court dismissed the 
appeal of the respondent as well as the cross appeal of the appellant ther~by 
maintaining the compensation awarded at the rate of Rs. 75 /- per lcatlw. 
Allowing the appeal to this Court, 
HELD : It is well settled that the effect of allowing an application for review 
of a decree is to vacate the decree passed. When the respondent filed the appeal 
before the High Court it could not have filed an appeal against the decree dated 
18-8-1961, becau~e, that decree had already been superseded by the decree dated 
26-9-1961 passed on review. 
So the appeal filed by the respondent before the 
High Court could only be an appeal against the decree passed on review. When 
the High Court held that the lower court was wrong in allowing the review it 
should have allowed the cross appeal. 
Since the decree passed on 18-8-1961 
awarding compensation at the rate of Rs. 200 per katha had been revived and 
come into life again, and no appeal was preferred by the respondent against that 
-Oecree, that dec:ree had become final. [943 G-944 A-CJ 
Per Krishna lyu. J : 
[While the appeal has to be allowed, Parliament may consider the wisdom of 
making the judge the ultimate guardian of justice by a comprehensive. though 
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guardedly worded, provision where the hindrance to rightful relief relates to in-
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firmities, even serious, sounding in procedural law. In the present case, almost 
·every step a reasonable litigant could take was taken by the State to challenge 
the extraordinary increase in the rate of compensation awarded by the civil court 
but the omission to attack the increase awarded in the High Court resulted in 
procedural law dominating substaqtive rights and substantial justice.] [944 F-H] 
CIVIL APl'ELLATE JURISJ?ICTION: Civil Appeal No. 1252 of 1970. 
From the judgment and decree dated 16th February, 1968 of the' 
G 
Patna High Court in Appeal for Original Decree No. 81 of 1962. 
P. K. Chatterjee and Rathin Das, for the appellant. 
D. Goburdhan, for the respondent.· 
The Judgment of A. N. Ray, CJ. a'ld K. K. Mathew, J. was deli-
vered by Mathew, J. V. R. Krishna Iyer, J. gave a separate Opinion. 
H 
MATHEW, J.-The appellant was the owner of 3 .30 acreS"_:_roughly 
.equal to 7 bighas, 17 kathis and 14 dhurs-of land. The land was 
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s. K. SEN v. BJHAR (Mathew, !.) 
943 
acquired under the provisions of the Land Acquisition Act. The Land 
Acquisition Officer by his award dated 12-10-1957 gave compensation 
at the rate of Rs. 14/- per katha for the land. 
The total compensation 
including the value of trees 
and 
other improvements came to 
Rs. 6, 775.22p. 
The appellant was dissatisfied with the award. 
He 
filed an application before the Land Acquisition Collector for referring 
the matter to the District Court under s. 18 of the Land Acquisition Act 
claiming compensation for the lands at the rate of Rs. 500/- per katha. 
The case was referred and the Additional District Judge, Purnea by his 
judgment dated 18-8-1961 found that the appellant was entitled to com-
pensation for the land acquired at the rate of Rs. 200/- per katha and 
also made certain other modifications in the amount of compensation 
under the other heads. 
On 22-8-1961, the respondent, the State of 
Bihar, filed an application for review, under Order 47, Rule 1, of the 
Civil Proc

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