MIAN FASIH-UL-MULK, J.---This appeal has been filed by Major Akbar Jan against order of learned Senior Civil Judge, Abbottabad, dated 22-3-2007, whereby the application of respondent for A dismissal of execution petition was accepted and execution proceedings filed by the appellant were filed without any further proceedings.
2. Facts of the case as gathered from the record precisely stated are that the landed property of appellant was acquired for Sui Gas Department. The appellant preferred objection petition which was accepted by the learned Senior Civil Judge, Abbottabad vide his judgment and decree dated 18-11-2000. Execution Petition was filed by the decree-holder, appellant when the judgment debtor, respondent filed an application on 9-10-2006 for dismissal of execution petition on the ground that the appellant has received the decretal amount and his earlier execution petition was consigned to the record room after satisfaction of decree. It was averred in the application that in the earlier execution petition the claim of interest has already been rejected and appellant could not succeed in getting such relief up to High Court, therefore, the execution proceedings may be filed. The aforesaid application was accepted and execution petition was filed without any further proceedings. Hence, the instant appeal.
3. Learned counsel for the appellant contended that the appellant is entitled to the payment of usual interest as admissible under the law on the awarded as well as enhanced amount from the date of taking possession of the suit land till payment. Learned counsel maintained that in R.F.A.
No,13 of 2004 affecters of the same award in the same Khasra number were granted interest by this Court and the appellant is also entitled for equal treatment vis-a-vis the compensation and interest. It was further argued that the impugned order of learned executing Court declining the interest is against the norms of justice and, as such, liable to be set aside. Finally, it was prayed that the appellant be paid interest as admissible under the law.
4. On the other hand, the learned counsel for the respondent refuted the contentions so raised and supported the impugned order. He contended that the appellant was not granted interest by the referee Court and could not succeed in subsequent appeal, therefore, the executing Court could not go beyond the scope of decree and on this ground alone the appeal be dismissed with costs.
5. I have heard learned counsel for the parties and perused the record.
6. Admittedly, the land of appellant along with others was acquired for Sui Gas Department vide Award No, LC/NWFP/363-69 dated 10-11-1999. The objection petition was allowed and compensation amount was enhanced. The appellant filed execution application and enhanced amount was paid to him. The prayer of interest was, however, turned down.
7. Fresh execution petition was filed on the basis of judgment dated 16-11-2005 rendered by High Court in R.F.A. No,13 of 2004 filed by Aziz-ur-Rehman wherein this Court held that Aziz-ur-Rehman is entitled to receive interest on the enhanced amount of compensation. It is pertinent to mention that the judgment relates to the same Khasra number in which appellant is co-owner and which property has been acquired through the same award.
8. Under the Land Acquisition Act, 1894 it is obligatory to pay interest from the date of taking possession of subject acquired land till its payment besides payment of compensation amount.
For the purposes of Land Acquisition Act, payment of interest shall have to be treated as part of the compensation admissible to a person entitled to compensation. The words "amount of compensation" as these occur in section 18 of the Act shall have to be given a wider meaning and will, therefore, include the amount payable in consideration for compulsory acquisition or by way of interest. The Court has got to see as to whether the appellant has been compensated as provided by the law. Whatever is admissible to a person as interest under the Act is the amount of compensation.
9. Learned executing Court accepted the application of respondent mainly on the ground that the appellant had filed objection petition and also preferred an appeal but both the Courts did not mention payment of interest to the appellant. The orders have attained finality as the same were not challenged before august Supreme Court of Pakistan.
' At this stage, it would be appropriate to refer to a case law reported in 1997 SCM R 1692, wherein it was observed as under;-- "From the preceding discussion, it follows that the power conferred on the Appellate Court under Order XLI, rule 33, C.P.C. Is of the widest amplitude and in exercise of this power the Appellate Court is competent to grant relief to a party, notwithstanding the fact that such party failed to prefer an appeal or submit any cross objection. However, in granting relief in such cases the appellate Court will be guided by principles of equity, justice and good conscience and the fact that withholding of relief would result in a contradictory, unworkable or impossible order/decree. Therefore, when the Appellate Court reaches a conclusion in a case that by withholding the relief to a non-appealing respondent or to a respondent who omitted to file cross-objection grave hardship or injustice is likely to result to it or that the judgment or orders will be rendered contradictory, it will be a good ground for exercise of power under Order XLI, Rule 33, C.P.C. To grant appropriate relief to a non- appealing respondent or to a respondent who omitted to file cross-objection in the appeal. In the case before us, the learned Judges of the High Court having reached the conclusion that the price of land acquired should have been assessed at Rs,4,666 per Marla, were of the opinion that in the circumstances of the case it would be unfair if the benefit of such assessment of market value of the land is not extended to those landowners also who failed to file the appeals or cross- objections. Although it was not so expressly stated in the impugned judgment by the learned Judges but from the trend of reasoning, it is clear to us that the learned Judges were of the view that it would lead to contradiction in terms, if some of the landowners in the same vicinity are awarded compensation at higher rate while others are paid at a much lower rate of assessment.
The learned Judges, therefore, took the view that the case was fit for exercise of power by them under Order XLI, Rule 33, C.P.C. By awarding compensation at a uniform rate even to those respondents who had either omitted to file the appeals against the judgment of referee Court or had failed to prefer cross-objections in the appeals filed by the appellants."
10. The same view was upheld in yet another case of Muhammad Sarwar Khan and others v.
Government of Pakistan and others 1998 SCM R 2197 in the following words:- "The matter is capable of being approached also in another way. With specific reference to acquisition proceedings, it has been laid down in Province of Punjab v. Abdul Majeed, 1997 SCM R 1692, that the benefit of a revision in compensation at the appellate stage, can be extended to non-appealing landowners as well. On this score alone a common enhancement of compensation by the court in contemplation of the Land Acquisition Act, should have ensured to the benefit of all the affectees."
11. In this background, the executing Court was in error by not allowing the benefit to the appellant on due representation. In order to avoid discrimination regarding payment of interest and taking guidance from the dictum laid down by the august Supreme Court of Pakistan and following the judgment of this Court in R.F.A. No,13 of 2004 filed by Aziz-ur-Rehman, I am left with no other option but to set aside the impugned order dated 22-3-2007.
12. Consequently, this appeal is allowed and appellant is held entitled to payment of interest on the enhanced amount of compensation from the date of possession till its payment as admissible under the law.