Nishamoni Debi and anr. Vs. Joy Krishna Panda and ors.

.....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]. - 3. in these circumstances we are not satisfied that the finding of the learned munsif has been arrived at properly on the evidence recorded in the case......deposed that the petitioner had some gold and silver ornaments worth rs. 400. the learned munsif has indulged in a lot of speculation, about the status of the petitioner while trying to determine her ability to pay court-fee. in the first place the fact that the order about revaluation of the suit was taken to the high court in revision is urged as a ground indicating the affluent circumstances of the petitioner. in view of the petitioner's evidence that her husband was looking after the litigation this point loses all significance. the husband's property cannot be the basis for determining the status of the petitioner. the second reason given by the learned munsif is equally fallacious. he says that the petitioner made no attempt to raise any money on the strength of the properties left by her father, bhikary panda. the suit properties are the only properties left by her father. these properties being admittedly devottar the petitioner could not raise any money on the pledge or mortgage of these devottar properties. the third reason put forward is that the petitioner must have been given ornaments and utensils at the time of her marriage as dowry as it is usual for girls to be given such presents. the learned munsif had relied upon the evidence of o. p.w. 1 for the statement that the petitioner has ornaments worth rs. 400. this after all is the interested statement of a party to the litigation and is contradicted by the evidence of the petitioner herself. but even accepting the evidence of o. p.w. 1 at its face value it cannot be said that these ornaments are such as can be parted with by a hindu woman, who has her husband alive. these ornaments are worn daily and as such constitute the wearing apparel of a brahmin hindu woman. 3. in these circumstances we are not satisfied that the finding of the learned munsif has been arrived at properly on the evidence recorded in the case. the order of the munsif is set aside. this revision is allowed and the petitioner is.....