Surendra Mohapatra Vs. Annapurna Mohapatra

.....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]. - madan lal, which is no longer good law. the contention is well founded. it is well settled that defendant no. the lahore case is not good law in view of the aforesaid..........ill from 2-2-67 to 14-3-67. the learned court below accepted the version of defendant no. 1 that he was ill during that period and that there was sufficient cause for his absence on 22-2-67 and 7-3-67. he however dismissed the application under order 9, rule 13 c. p. c. on the view that the ex parte order passed on 4-1-67 and 27-1-67 stood in the way of the defence contention, and that as there was no prayer for setting aside those ex parte orders the ex parte decree cannot be set aside.2. mr. ray contends that the learned judge acted contrary to law in placing reliance on air 1950 lah 43, krishan lal v. madan lal, which is no longer good law. the contention is well founded. it is well settled that defendant no. 1 could not have the ex parte order passed on 4-1-67 set aside without making out a case for it. defendant no. 1 did not present any case that he was ill on 4-1-67 and 27-1-67. accordingly defendant no. 1 is precluded from filing written statement which was to be filed on 4-1-67. if, however, he shows sufficient cause for his absence on 22-2-67 when the plaintiff's suit was heard ex parte, the ex parte decree can be set aside in an application under order 9, rule 13 c. p. c. and the case after restoration would start from the stage where it was on 22-2-67. defendant no. 1 can cross-examine the witnesses of the plaintiff and can give evidence on his own behalf. this view is concluded by air 1964 sc 993, arjun singh v. mohindra kumar. the lahore case is not good law in view of the aforesaid supreme court decision.3. in the result, the ex parte decree passed on 7-3-67 is set aside and the suit is restored for trial. defendant no. 1 is debarred from filing written statement. the learned subordinate judge would fix a date of hearing when both the parties will be given full opportunity to give such evidence as they desire. the case is restored back to the stage at which it was on 22-2-67. defendant no. 1 is to pay a consolidated cost of rupees 200/- to the.....