Khalli Rath Vs. Eppili Ramachandra

Khalli Rath vs Eppili Ramachandra

Disposition Appeal allowed Court Orissa Decided Aug 17, 1951

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Citation: sooperkanoon.com/525565
Court: Orissa High Court
Judge: Jagannadhadas and ;Panigrahi, JJ.
Decided On: Aug 17, 1951
Case Number: Misc. Appeal No. 67 of 1948
Subject: Property
Disposition: Appeal allowed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal ...

Key legal issue: Property
Outcome / disposition: Appeal allowed
Acts & sections: Code of Civil Procedure (CPC) , 1908 - Sections 47; Orissa House Rent Control Act, 1947 - Sections 13

Parties & Advocates

Appellant / Petitioner

Khalli Rath

Advocate S.N. Das Gupta, Adv.

Respondent

Eppili Ramachandra

Advocate P.V.B. Rao, Adv.

Legal References

Acts: Code of Civil Procedure (CPC) , 1908 - Sections 47; Orissa House Rent Control Act, 1947 - Sections 13
Reported In: AIR1953Ori74; 18(1952)CLT52

Excerpt

.....extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - it appears to us that it would be travelling beyond the words used by the parties in the compromise deed, to import into it anything like a provision directing..........nor does it say that the defendant should deliver back possession at the end of the stipulated period. all that the stipulation amounts to is that the defendant agreed to vacate after a certain date. what would happen in the event of a violation of this provision was not stipulated or agreed to between the parties. in such circumstances it is difficult to hold that the parties intended that the plaintiff should recover possession by way of execution as the suit itself was one for possession. we are therefore unable to accept the view taken by the courts below that the decree was executable as the suit itself was for possession and would set aside the order under appeal.3. the second objection taken by the judgment-debtor is equally well founded. it clear to us that the orissa house rent control act was in operation in russelkonda (sic) when execution was started. it is adverted that the requirements of that act have been complied with by the decree-holder, (sic) the obtaining of a certificate from the controller. mr. p.v.b. rao appearing for the decree-holder concedes that a certificate should have been obtained from the controller before the decree-holder could execute the decree.4. we are satisfied that the order under appeal cannot be upheld. the appeal is accordingly allowed and the judgment of the lower appellate court is set aside. there will, however, be no order as to costs.das, j.5. i agree.

Full Judgment

Panigrahi, J.

1. This appeal arises out of execution proceedings started by me decree-holder (respondent) for delivery of possession of a house. The appellant was the defendant on a suit brought by the respondent for eviction from a house belonging to the latter and for recovery of arrears of rent. On 21-3-46 the parties filed a deed of compromises whereby it was agreed between them that the appellant would pay rent at the rate of Rs. 5/- per month for one year, namely till 31-3-47, as tenant, and at the end of the year he would vacate the house without notice. On that very same day, viz., 21-3-46 a decree was passed in terms of the above compromise. The appellant, however, did not vacate the house, as stipulated and the respondent started execution on 17-5-47.

In the meanwhile the Orissa House Rent Control Act had been extended to the town of Russelkonda, where the suit house is situated, it is urged on behalf of the appellant that he is not liable to eviction, firstly, on a plain reading of the terms of the compromise, the decree is inexecutable and secondly for want of a certificate from the Collector under the provisions of the House Rent Control Act.

2. The Courts below have held that the compromise decree is executable as the suit itself was for possession. It appears to us that it would be travelling beyond the words used by the parties in the compromise deed, to import into it anything like a provision directing execution to be taken in the event of the defendant not vacating the house after the expiry of the period of one year. The compromise does not say that the decree-holder shall be entitled to enforce the compromise in execution proceedings and eject the defendant. Nor does it say that the defendant should deliver back possession at the end of the stipulated period. All that the stipulation amounts to is that the defendant agreed to vacate after a certain date. What would happen in the event of a violation of this provision was not stipulated or agreed to between the parties. In such circumstances it is difficult to hold that the parties intended that the plaintiff should recover possession by way of execution as the suit itself was one for possession. We are therefore unable to accept the view taken by the Courts below that the decree was executable as the suit itself was for possession and would set aside the order under appeal.

3. The second objection taken by the judgment-debtor is equally well founded. It clear to us that the Orissa House Rent Control Act was in operation in Russelkonda (SIC) when execution was started. It is adverted that the requirements of that Act have been complied with by the decree-holder, (SIC) the obtaining of a certificate from the controller. Mr. P.V.B. Rao appearing for the decree-holder concedes that a certificate should have been obtained from the Controller before the decree-holder could execute the decree.

4. We are satisfied that the order under appeal cannot be upheld. The appeal is accordingly allowed and the judgment of the lower appellate Court is set aside. There will, however, be no order as to costs.

Das, J.

5. I agree.

Same Parties Khalli Rath vs Eppili Ramachandra Same Subject Property Same Judge Jagannadhadas and ;Panigrahi, JJ. Acts & Sections Code of Civil Procedure (CPC) , 1908 - Sections 47; Orissa Ho...

Property