Netramani Dibya and ors. Vs. Dasarathi Misra and ors.

Netramani Dibya and ors. vs Dasarathi Misra and ors.

Type Court Judgment Court Orissa Decided Nov 21, 1985

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Citation: sooperkanoon.com/528721
Court: Orissa High Court
Judge: S.C. Mohapatra, J.
Decided On: Nov 21, 1985
Case Number: Civil Revn. No. 689 of 1985
Subject: Civil

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: Civil
Acts & sections: Code of Civil Procedure (CPC) , 1908 - Sections 151 - Order 6, Rule 17 - Order 21, Rule 11; Court-fees Act, 1870 - Sections 6

Parties & Advocates

Appellant / Petitioner

Netramani Dibya and ors.

Advocate R. Mohanty and ;P. Mohanty, Advs.

Respondent

Dasarathi Misra and ors.

Advocate J.P. Misra and ;A.K. Mohakuda, Advs. (for No. 1)

Legal References

Acts: Code of Civil Procedure (CPC) , 1908 - Sections 151 - Order 6, Rule 17 - Order 21, Rule 11; Court-fees Act, 1870 - Sections 6
Reported In: AIR1986Ori235; 61(1986)CLT27

Excerpt

.....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 trial court shall do well to dispose of all the objections received as expeditiously as possible preferably by the 15th feb......of law itself. in a republic governed by rule of law, this provision cannot be ignored till the provision exists. however, where it is possible to give chance to a party to get the defect rectified, harsh view would not be taken. 6. in the peculiar facts and circumstances of this revision, i direct the decree-holder to pay the proper fee under the court-fees act on the certified copies pf the decree on or before 2nd dec., 1985. the decree-holder shall be given opportunity to amend the execution petition on 2nd dec. 1985 on filing a proper petition. the judgment-debtors including the petitioners who have not filed their objections shall be given opportunity to file the same by the 15th dec., 1985. no objection thereafter shall be entertained by the executing court. the trial court shall do well to dispose of all the objections received as expeditiously as possible preferably by the 15th feb., 1986. all endeavour should be made for completing the execution proceeding by 31st mar., 1986. 7. i may make it clear that no objection relating to the maintainability of the executioncase, on account of the earlier decree having lost its force or absence of notice to those judgment-debtors who have received the notice already shall be entertained. 8. mr. j. p. misra, the learned counsel for the decree-holder submitted that the litigation is continuing since the year 1951 to the detriment of the decree-holder and some arrangement relating to the standing crop should be made to protect the interest of the decree-holder. since i have disposed of the civil revision, i am not entertaining such a prayer. it is open to the decree-holder to move the executing court for dealing with the question in accordance with law. 9. the civil revision is accordingly disposed of. there shall be no order as to costs. send back the records at once to the executing court on or before 30th nov., 1985. parties are directed to appear before the executing court on 2-12-1985 for further orders by that.....

Full Judgment

ORDER

S.C. Mohapatra, J.

1. This Civil Revision arises out of an order of the learned Subordinate Judge, Nayagarh, refusing to permit the petitioners to file their objection under Section 47, Civil P.C. to the execution of a final decree in a suit for partition. While accepting the revision for further hearing, interim stay of further proceeding in the execution case was passed. Decree-holder-opposite party No. 1 appeared and filed an application for vacating the order of stay. While considering the said petition, I directed the matter to be heard finally without waiting for the service return of notice to the other judgment-debtors who did not have any grievance against the impugned order.

2. Execution Proceeding No. 13 of 1982 was filed for execution of the final decree dt. 17-8-1982 in the partition suit. The said decree was set aside by this Court on 8-11-1982. The proceeding in execution remained stayed pending disposal of the final degree proceeding after the final decree was cated (sic) by this Court. The second final decree was passed on 2-9-1983. One year thereafter on 14-11-1984, the Executing Court vacated the interim stay granted. On 5-12-1984, the certified copy of the second final decree was filed in the execution proceeding. From the record it is seen that notice of filing of the certified copy of the second final decree had been given to one Advocate. The case of the petitioners judgment-debtors is that their Lawyer Mr. S. C. Mohapatra who was entrusted with the conducting of the entire execution proceeding having joined judicial service, they could not know about the further stages of the Execution Proceeding. Coming to know that the said proceeding was pending, they filed an application on 23-9-1985 to get an opportunity to file objection to the execution case. The said prayer having been refused, the present Civil Revision has been filed.

3. Mr. Mohanti, the learned counsel for the petitioners may be technically correct to submit that the Execution Proceeding cannot continue when the decree sought to be executed had been vacated. This question, however, need not be given much importanceas there would be no bar for the decree-holder to file a fresh execution proceeding since such a proceeding would not be barred by limitation or on any other ground. When there is a second decree which is alleged to be substantially the same as the first one, the ends of justice would be served by allowing the decree-holder to amend the petition giving the correct particulars.

4. All the judgment-debtors have been served with notice of the Execution Proceeding. Some of them have filed objection. When I am giving opportunity to the decree-holder to amend the execution petition, there will be no prejudice to give opportunity to the petitioners to file objection, if any, to the execution.

5. I find that the certified copies of the decree dt. 17-8-1982 and decree dt. 2-9-1983, do not bear the proper fees under Schedule 1, Article 7 of the Court-fees Act which provides that no document under Section 6 of the Court-fees Act is to be received by the court on which proper fee has not been paid. Under the Court-fees Act, no power is left with the court to avoid Section 6 of the Act. Inherent power of the Court would not give such a power which would be contrary to the provisions of law itself. In a Republic governed by rule of law, this provision cannot be ignored till the provision exists. However, where it is possible to give chance to a party to get the defect rectified, harsh view would not be taken.

6. In the peculiar facts and circumstances of this revision, I direct the decree-holder to pay the proper fee under the Court-fees Act on the certified copies pf the decree on or before 2nd Dec., 1985. The decree-holder shall be given opportunity to amend the execution petition on 2nd Dec. 1985 on filing a proper petition. The judgment-debtors including the petitioners who have not filed their objections shall be given opportunity to file the same by the 15th Dec., 1985. No objection thereafter shall be entertained by the Executing Court. The trial court shall do well to dispose of all the objections received as expeditiously as possible preferably by the 15th Feb., 1986. All endeavour should be made for completing the execution proceeding by 31st Mar., 1986.

7. I may make it clear that no objection relating to the maintainability of the executioncase, on account of the earlier decree having lost its force or absence of notice to those judgment-debtors who have received the notice already shall be entertained.

8. Mr. J. P. Misra, the learned counsel for the decree-holder submitted that the litigation is continuing since the year 1951 to the detriment of the decree-holder and some arrangement relating to the standing crop should be made to protect the interest of the decree-holder. Since I have disposed of the Civil Revision, I am not entertaining such a prayer. It is open to the decree-holder to move the Executing Court for dealing with the question in accordance with law.

9. The Civil Revision is accordingly disposed of. There shall be no order as to costs. Send back the records at once to the Executing Court on or before 30th Nov., 1985. Parties are directed to appear before the Executing Court on 2-12-1985 for further orders by that Court.

Same Court & Year Orissa · 1985 Same Parties Netramani Dibya and ors. vs Dasarathi Misra and ors. Same Subject Civil Same Judge S.C. Mohapatra, J. Acts & Sections Code of Civil Procedure (CPC) , 1908 - Sections 151 - Order 6...

Civil