Krushna Chandra Nayak Vs. Biswajit Sahoo and ors. - Court Judgment

Excerpt:
- 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 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]. orderr.k. dash, j.1. krushna chandra nayak, the present petitioner, filed a petition under order 1, rule 10, cpc to be impleaded as a party to title suit no. 310 of 1988-i stating, inter alia, that he has obtained a decree for specific performance of contract in title suit no. 102 of 1981 against defendants 2 to 4 and father of defendant no. 1 in respect of certain properties which are involved in the present suit. this was, however, opposed to by plaintiffs. upon hearing and relying upon a decision of this court reported in air 1986 orissa 74, sujan charan lenka v. pramila kumari mohanty, the learned civil judge (senior division), first court, cuttack, rejected the prayer. hence the present revision.2. heard the learned counsel for petitioner and opposite party no. 5. none appears for other opposite parties.3. it appears from the impugned order that no sale deed having been executed pursuant to the decree for specific performance of contract passed in title suit no. 102 of 1981, the learned court below held the petitioner to have not acquired any title to the property covered under the decree and therefore, he is not a necessary party to the present suit. the court, however, gave liberty to the petitioner to make similar prayer when the final decree proceeding is initiated after the decree is passed.4. upon hearing the learned counsel for parties and for the reasons to follow, i hold that the impugned order is unsustainable. there is a valid decree for specific performance of contract in favour of the petitioner and the same is final and conclusive having not been challenged in the higher forum. the property covered under the decree is involved in the present suit which is one for partition. true it is, no sale deed has yet been executed in respect of the property covered under the decree. yet the petitioner is a person interested in the suit and his presence is necessary, for effective adjudication of the dispute. if he is not brought on record as a defendant and permitted to contest the suit, certain complicacy may arise which may ultimately affect his interest. for example, in the present suit for partition, if the parties enter into compromise and the land covered under the decree is allotted in favour of any person other than the one against whom the decree for specific performance of contract was passed, in that case it would be difficult for the petitioner to obtain possession of the said land through court. in the above view of the matter, i am of the opinion that the petitioner's prayer for being impleaded as a party to the suit should be allowed.5. before parting with, i may observe that the decision of this court relied upon by the trial court has been overruled by hon'ble supreme court in civil appeal no. 5293 of 1985 (smt. pramila kumari mohanty v. sujan charan lenka) decided on 28th november, 1985. unfortunately that decision of the supreme court has not been published in any law journal.6. in the result, revision is allowed and the impugned order is set aside. consequently petitioner's prayer for being impleaded as a party is allowed. no cost.

Judgment:
ORDER

R.K. Dash, J.

1. Krushna Chandra Nayak, the present petitioner, filed a petition under Order 1, Rule 10, CPC to be impleaded as a party to Title Suit No. 310 of 1988-I stating, inter alia, that he has obtained a decree for specific performance of contract in Title Suit No. 102 of 1981 against defendants 2 to 4 and father of defendant No. 1 in respect of certain properties which are involved in the present suit. This was, however, opposed to by plaintiffs. Upon hearing and relying upon a decision of this Court reported in AIR 1986 Orissa 74, Sujan Charan Lenka v. Pramila Kumari Mohanty, the learned Civil Judge (Senior Division), First Court, Cuttack, rejected the prayer. Hence the present revision.

2. Heard the learned counsel for petitioner and opposite party No. 5. None appears for other opposite parties.

3. It appears from the impugned order that no sale deed having been executed pursuant to the decree for specific performance of contract passed in Title Suit No. 102 of 1981, the learned Court below held the petitioner to have not acquired any title to the property covered under the decree and therefore, he is not a necessary party to the present suit. The Court, however, gave liberty to the petitioner to make similar prayer when the final decree proceeding is initiated after the decree is passed.

4. Upon hearing the learned counsel for parties and for the reasons to follow, I hold that the impugned order is unsustainable. There is a valid decree for specific performance of contract in favour of the petitioner and the same is final and conclusive having not been challenged in the higher forum. The property covered under the decree is involved in the present suit which is one for partition. True it is, no sale deed has yet been executed in respect of the property covered under the decree. Yet the petitioner is a person interested in the suit and his presence is necessary, for effective adjudication of the dispute. If he is not brought on record as a defendant and permitted to contest the suit, certain complicacy may arise which may ultimately affect his interest. For example, in the present suit for partition, if the parties enter into compromise and the land covered under the decree is allotted in favour of any person other than the one against whom the decree for specific performance of contract was passed, in that case it would be difficult for the petitioner to obtain possession of the said land through court. In the above view of the matter, I am of the opinion that the petitioner's prayer for being impleaded as a party to the suit should be allowed.

5. Before parting with, I may observe that the decision of this Court relied upon by the trial Court has been overruled by Hon'ble Supreme Court in Civil Appeal No. 5293 of 1985 (Smt. Pramila Kumari Mohanty v. Sujan Charan Lenka) decided on 28th November, 1985. Unfortunately that decision of the Supreme Court has not been published in any law journal.

6. In the result, revision is allowed and the impugned order is set aside. Consequently petitioner's prayer for being impleaded as a party is allowed. No cost.