Surendra Chandra Jena and ors. Vs. Laxminarayan Jena and ors.

.....limitation/or 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]. - the proposition is well settled, and if any authority is needed i may refer to a case of the patna high court in ramcharan singh v......them. the application was rejected by the learned subordinate judge on the sole ground that the will had not been probated by the court under section 211 of the succession act (for short 'the act').3. i am informed that in the meantime the will has been probated in favour of the petitioners for which mr. kar appearing for them wanted time to produce the order. since the statement is coming from the bar, i would prefer to accept the same.4. apart from the above fact, section 211 of the act makes a special provision. according to this provision, the executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such. according to the scheme of the above provision of the act, the executor is not required to wait for the grant of the probate but can ipso facto being the legal representative prosecute the lis in view of the devolution of the interest under order 22, rule 10 of the civil p.c. inasmuch as the testator's title stands vested in the executor on the his death. the case of an administrator may, however, be different, because he has to wait until grant of the letters of administration in his favour by the court. the proposition is well settled, and if any authority is needed i may refer to a case of the patna high court in ramcharan singh v. mst. dharohar kuer, air 1954 pat 175.5. the learned subordinate judge, therefore, has committed an apparent error of jurisdiction in rejecting the application of the petitioners. the revision application therefore, must succeed and is accordingly allowed. the trial court is directed to transpose the petitioners to the category of plaintiff.i shall, however, leave the parties to bear their own costs.