Basudev Gouda Vs. Narsingha Patra

.....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]. - 4. after hearing both the parties, i am satisfied that the appellate court was not justified in remitting back the entire suit......with. accordingly, it set aside the decree and directed to hear the suit afresh after deputing another commissioner for measurement.3. mr. s. s. rao, the learned counsel for the appellant, submitted that the order is vitiated on account of the fact that the report of the commissioner is not the only evidence in this case and there are other materials on record from which the appeal could have been decided by the appellate court.mr. r k. panda, the learned counsel for the respondent, submitted that the result of the entire suit depends upon the commissioner's report and for the said purpose a commissioner was deputed by the trial court. accordingly, the appellate court is justified in remitting back the entire suit.4. after hearing both the parties, i am satisfied that the appellate court was not justified in remitting back the entire suit. after amendment of the c.p.c., remand of a suit by the appellate court is authorised on three grounds :(1) the preliminary issue on which the suit has been decided fails (order 41, rule 23, c.p.c.); (2) one important issue has to be decided for proper decision of the dispute (order 41, rule 25, c.p.c.); arid (3) interest of justice requires the entire suit to be tried again.5. i have expressed in a decision reported in air 1986 orissa 207 rushi v. madan behera:''........the appellate court is required firstto make the endeavour to answer the disputed findings and where in spite of such findings it would not be in a position to come to a conclusion either way, it would remand the suit for fresh trial.....'following the said decision, it has been held in a decision reported in (1986) 2 orissa lr 654 nishi swain v. bikala charan swain :'i may make it clear that order 41, rule 23-a, c.p.c., should be sparingly used since the public policy is that a litigation is to be concluded finally as early as possible. where, however, remand is felt necessary after judicial consideration and rule 25 is considered not to be adequate,.....