Pitabas Podhan Vs. Krushna Podhan and 3 ors.

.....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 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]. - if there is any apprehension of breach of the peace, the unsuccessful party should be bound down under section 107, cr......section 144, cr. p.c. on 16-11-66 an ex parte prohibitory order was passed. on 19-12-66 the learned magistrate converted the proceeding under section 144 into one under section 145. cr. p.c. the criminal revision has been filed against the propriety, of this order. 2. the order of the learned magistrate is indefensible. the matter is concluded by a series of decisions of this court, one of which is reported in ilr (1964) cut 182 = (air 1964 ori 204), banamali v. baira nahak. in a case of this nature, where recent delivery of possession has been effected through civil court, it is the paramount duty of the criminal court to see that the possession of the successful party is maintained. if there is any apprehension of breach of the peace, the unsuccessful party should be bound down under section 107, cr. p.c. the learned magistrate fell into acomplete confusion of thought as he did not keep himself in touch with the recent development in law and converted the proceeding under section 144, cr. p.c. into one under section 145, cr. p.c. the proceeding under section 145, cr. p.c. is accordingly quashed and the learned magistrate is directed to take action against the opposite parties under section 107. cr. p.c. if there is still further apprehension of breach of the peace. the order of the learned magistrate is set aside and the criminal revision is allowed. 3. on behalf of the petitioner an application for contempt was filed to take action against the sub-inspector of police who was the receiver. he got the paddy harvested on 25-12-66 despite the matter having been brought to his notice that this court had passed an order of stay. mr. pal however, does not press this application. it is accordingly discharged. 4. there is no denying of the tact thatthe opposite parties are entitled to a shareof the produce towards their costs of cultivation for the agricultural year 1966-67 thepetitioner is to work out his rights as to hisshare in appropriate forum.