Permission to withdraw 50% of the deposit granted.

1. The revision petitioner is the petitioner/decree-holder, and the respondent is the Land Acquisition Officer/respondent before the court below.

2. The revision petition is filed as against the fair and decretal order dated 27.8.1998 made in R.E.A.No.86 of 1998 in L.A.O.P.No.35 of 1993 on the file of Subordinate Judges Court at Tirupattur in Vellore District.

3. The revision petitioner/decree-holder has challenged the award passed by the respondent/Land Acquisition Officer under Sec.18 of the Land Acquisition Act for the enhanced compensation in L.A.O.P.No.35 of 1993 on the file of Subordinate Judges Court at Tirupattur, Vellore District. An award was passed by the Subordinate Judges Court at Tirupattur for the enhanced compensation. Aggrieved against said decision of the Subordinate Judges Court at Tirupattur in L.A.O.P.No.35 of 1993, the Respondent/Land Acquisition Officer has filed an appeal in A.S.No.432 of 1997 which is still pending on the file of High Court of Madras. There was no stay of execution granted by the High Court in the appeal preferred by the respondent/Land Acquisition Officer herein in A.S.No.432 of 1997. So the revision petitioner/decree-holder filed the execution petition in R.E.A.No.186 of 1998 under Rules 163 and 165 of Civil Rules of Practice to withdraw the enhanced amount of Rs.14,60,810 which was deposited by the respondent/Land Acquisition Officer. The said application was resisted by the respondent/Land Acquisition Officer by filing a counter statement. After considering the objections of the respondent/Land Acquisition Officer, the learned Subordinate Judge at Tirupattur has passed the impugned order by stating in Tamil as follows:

"TAMIL"

Aggrieved against the said order, the present revision petition is filed by the revision petitioner/decree-holder.

4. It is relevant to note that the reference for the enhanced compensation was taken on file by the Subordinate Judge at Tirupattur as L.A.O.P.No.35 of 1993. Thereafter, a judgment was delivered by the learned Subordinate Judge at Tirupattur in the said L.A.O.P.No.35 of 1993 on 31.10.1995 for enhanced compensation. As against the said judgment dated 31.10.1995, the respondent/Land Acquisition Officer has preferred an appeal only in the year 1997, which was taken on file as A.S.No.432 of 1997 on the file of High Court, Madras. There was no stay granted by the High Court, Madras for execution of the decree obtained by the revision petitioner/decree-holder in L.A.O.P.No.35 of 1993 till date. These are the admitted facts in this case.

5. O.41, Rule 5(1) of C.P.C. states that an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the appellate court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree.

6. O.41, Rule 5(1) of C.P.C. states that where an application is made for stay of execution of an appellate decree, the court which passed the decree may on sufficient cause being shown order the execution to be stayed. Therefore, the mere pendency of the appeal itself cannot be a ground to dismiss the execution petition filed by the revision petitioner/decree-holder herein and in such circumstances the impugned order passed by the learned Subordinate Judge at Tirupattur has to be set aside.

7. However the learned counsel for the respondent/Land Acquisition Officer argued that recently the Land Acquisition Act of 1894 was amended by the Amendment Act 16 of 1997 and Sec.23-A was introduced for restriction on the withdrawal of the compensation amount in the land acquisition proceedings, and so the execution petition filed by the revision petitioner/decree-holder is not maintainable under law.

8. The learned counsel for the revision petitioner/decree-holder repudiated the above contention of the learned counsel for the respondent/Land Acquisition Officer by stating that the amendment Act of 16 of 1997 in respect of the Land A