Narayan Chandra Sahu Vs. Abhimanyu Sahu

Narayan Chandra Sahu vs Abhimanyu Sahu

Disposition Appeal allowed Court Orissa Decided Sep 06, 1979

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Citation: sooperkanoon.com/525771
Court: Orissa High Court
Judge: S. Acharya, J.
Decided On: Sep 06, 1979
Case Number: Misc. Appeal No. 114 of 1979
Subject: Family;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: Family;Property
Outcome / disposition: Appeal allowed
Acts & sections: Code of Civil Procedure (CPC) , 1908 - Order 40, Rule 1

Parties & Advocates

Appellant / Petitioner

Narayan Chandra Sahu

Advocate P. Kar and ;J. Sahu, Advs.

Respondent

Abhimanyu Sahu

Advocate R. Ch. Mohanty, ;D.S. Mohanty and ;Siddharth Mohanty, Advs.

Legal References

Acts: Code of Civil Procedure (CPC) , 1908 - Order 40, Rule 1
Reported In: AIR1980Ori118

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]. - on failure to comply with any of the above conditions the order appointing the appellant as receiver of the said property shall stand automatically vacated, and the..........witnesses and adduced documentary evidence to buttress their respective cases on the above matter. ultimately, the court below by its order dated 3-5-79 directed the tahsildar, chandbali to hold a local inspection personally to ascertain the actual facts and the amount of rent which was being realised by the appellant from the tenants, and to submit his report to that effect the tahasildar, chandabali by his report dated 13-6-79 reported that the appellant was collecting only rs. 440/-towards house rent from the different tenants in the houses and rooms on the said plot of land as stated by the appellant and not rs, 860/- as alleged by the respondent. he also mentioned in that report that the rent collected by the appellant appeared to him to be reasonable in view of the conditions of the said houses; and that the houses were being repaired annually by the appellant. as the appellant admittedly is in possession of a house on the said plot of land and is living there with his family members, he had inducted the tenants in the other houses and rooms on that plot and till late was realising rent from the said tenants and repairing those houses regularly, the court below was not justified in appointing a third party as receiver of that plot of land during the pendency of the partition suit between the parlies, as that would cause unnecessary inconvenience, worry and embarrassment to the appellant, not called for in the facts and circumstances of the case. on a consideration of the facts and circumstances of this case, i deem it just and proper to appoint the appellant, defendant no. 1 in the suit, as receiver of the said property. 4. the appellant and the respondent have each a snare in that property and in the income therefrom. the appellant asit appears from the report of the tahasildar, is spending money for repairing the houses on that plot of land. considering the facts and circumstances of the case, i hereby direct that the appellant, while acting as receiver of.....

Full Judgment

S. Acharya, J.

1. This appeal has been preferred against the order of the court below appointing a third party receiver in respect of A 0.43 decimals of land in the Chandbali town out of the entire suit property. The Tahsildar, Chandbali has been appointed as the receiver of the said property and he has been authorised to collect rent from the tenants in the different houses and rooms on the said plot of land from the Month of June, 1979 and to deposit the same in the Nizarat of the court below at his convenience under Intimation to that court every Month.

2. The suit between the parties is a suit for partition of the joint family properties. Undisputedly, the defendant No. 1, the appellant herein, is occupying a house on the said plot and is staying there with his family. It is also not disputed that some tenants have been inducted by the appellant in the other houses and room on the said plot of land and that the appellant has been collecting rent from the said tenants.

3. In the petition under Order 40, Rule 1, C. P. C. in the court below it was alleged by the respondent that the appellant was not maintaining the said houses properly and that he was misappropriating the entire monthly rent of Rs. 860/-colleoted by him from the tenants. The parries at first examined witnesses and adduced documentary evidence to buttress their respective cases on the above matter. Ultimately, the court below by its order dated 3-5-79 directed the Tahsildar, Chandbali to hold a local inspection personally to ascertain the actual facts and the amount of rent which was being realised by the appellant from the tenants, and to submit his report to that effect The Tahasildar, Chandabali by his report dated 13-6-79 reported that the appellant was collecting only Rs. 440/-towards house rent from the different tenants in the houses and rooms on the said plot of land as stated by the appellant and not Rs, 860/- as alleged by the respondent. He also mentioned in that report that the rent collected by the appellant appeared to him to be reasonable in view of the conditions of the said houses; and that the houses were being repaired annually by the appellant. As the appellant admittedly is in possession of a house on the said plot of land and is living there with his family members, he had inducted the tenants in the other houses and rooms on that plot and till late was realising rent from the said tenants and repairing those houses regularly, the court below was not justified in appointing a third party as receiver of that plot of land during the pendency of the partition suit between the parlies, as that would cause unnecessary inconvenience, worry and embarrassment to the appellant, not called for in the facts and circumstances of the case.

On a consideration of the facts and circumstances of this case, I deem it just and proper to appoint the appellant, defendant No. 1 in the suit, as receiver of the said property.

4. The appellant and the respondent have each a snare in that property and in the income therefrom. The appellant asit appears from the report of the Tahasildar, is spending money for repairing the houses on that plot of land. Considering the facts and circumstances of the case, I hereby direct that the appellant, while acting as receiver of the said property shall furnish proper security to the satisfaction of the court below to the extent of Rs. 3000/- (Three thousand) only per year by the end of December every year beginning from this year, till the disposal of the suit. The appellant shall furnish accounts to the court below regarding the income from the tenant, and expenses towards repairs of the houses, and that will be taken into consideration in the final decree proceeding. On failure to comply with any of the above conditions the order appointing the appellant as receiver of the said property shall stand automatically vacated, and the respondent shall be free to move the court below to appoint any other suitable person as the receiver of the said property.

5. The order of the court below is set aside and the appellant is hereby appointed receiver of the said property on the terms and conditions as stated above.

6. The appeal is allowed, but in the circumstances without costs.

7. The hearing of the suit be expedited.

8. The L. C. R. be sent back immediately.

Same Court & Year Orissa · 1979 Same Parties Narayan Chandra Sahu vs Abhimanyu Sahu Same Subject Family;Property Same Judge S. Acharya, J. Acts & Sections Code of Civil Procedure (CPC) , 1908 - Order 40, Rule 1

Family;Property