Rushi Mahakur Vs. Dibya Shankar Padhan and anr. - 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]. - as against the attaching creditor a private sale would not be effective, but if the order of attachment is withdrawn or the claim of the creditor is otherwise satisfied, the sale deed executed would convey good title to the transferee.orderk.p. mohapatra, j. 1. this civil revision is directed against the order passed by the learned district judge, sambalpur, affirming the order of the learned subordinate judge, bargarh, rejecting the petition filed by the petitioner under order 21, rule 58 of the civil p.c. ('code' for short).2. the land in dispute in this case is 1.02 acres of land out of khata no, 32 of village nagaon which was attached under order 38, rule 5 of the code by order of the learned subordinate judge dt. 4-3-1974. the attachment was effected by the process server on 5-3-1974 as is evident from his report (ext.-a-1). despite the attachment, the petitioner purchased the said land from opposite party no. 2 by a registered sale deed dt. 22-3-1974 for a cash consideration of rs. 3,000/-. the petitioner in execution case no. 51 of 1976 filed a petition under order 21, rule 58 of the code for release of the disputed land.3. after hearing the learned counsel appearing for both parties, i find that the case is completely covered by an identical case reported in (1986) 62 cut lt 373, sashi bag v. dibya shahkar padhan. in that case also the disputed land was attached before judgment and was subsequently sold by thesame party. on interpretation of section 64 of the code it was held on plain construction thereof that an alienation of immoveable property made after attachment shall be void against all claims enforceable under the attachment to the same extent as an alienation made after the attachment under a decree. provisions of section 64 are meant to safeguard the interest of the creditor. as against the attaching creditor a private sale would not be effective, but if the order of attachment is withdrawn or the claim of the creditor is otherwise satisfied, the sale deed executed would convey good title to the transferee.4. applying the aforesaid principle to the facts of the case it will appear that after attachment of the disputed land before judgment, the same was transferred in favour of the petitioner. therefore, the transfer is ineffective and void as against the interest of the petitioner. this being the position, the learned courts below were justified in rejecting the petition under order 21, rule 58 of the code which was not maintainable.5. for the reasons stated above, i find no merit in the civil revision which is dismissed. hearing fee is assessed at rs. 100/-.

Judgment:
ORDER

K.P. Mohapatra, J.

1. This civil revision is directed against the order passed by the learned District Judge, Sambalpur, affirming the order of the learned Subordinate Judge, Bargarh, rejecting the petition filed by the petitioner under Order 21, Rule 58 of the Civil P.C. ('Code' for short).

2. The land in dispute in this case is 1.02 acres of land out of Khata No, 32 of village Nagaon which was attached under Order 38, Rule 5 of the Code by order of the learned Subordinate Judge dt. 4-3-1974. The attachment was effected by the Process Server on 5-3-1974 as is evident from his report (Ext.-A-1). Despite the attachment, the petitioner purchased the said land from opposite party No. 2 by a registered sale deed dt. 22-3-1974 for a cash consideration of Rs. 3,000/-. The petitioner in Execution Case No. 51 of 1976 filed a petition under Order 21, Rule 58 of the Code for release of the disputed land.

3. After hearing the learned counsel appearing for both parties, I find that the case is completely covered by an identical case reported in (1986) 62 Cut LT 373, Sashi Bag v. Dibya Shahkar Padhan. In that case also the disputed land was attached before judgment and was subsequently sold by thesame party. On interpretation of Section 64 of the Code it was held on plain construction thereof that an alienation of immoveable property made after attachment shall be void against all claims enforceable under the attachment to the same extent as an alienation made after the attachment under a decree. Provisions of Section 64 are meant to safeguard the interest of the creditor. As against the attaching creditor a private sale would not be effective, but if the order of attachment is withdrawn or the claim of the creditor is otherwise satisfied, the sale deed executed would convey good title to the transferee.

4. Applying the aforesaid principle to the facts of the case it will appear that after attachment of the disputed land before judgment, the same was transferred in favour of the petitioner. Therefore, the transfer is ineffective and void as against the interest of the petitioner. This being the position, the learned courts below were justified in rejecting the petition under Order 21, Rule 58 of the Code which was not maintainable.

5. For the reasons stated above, I find no merit in the civil revision which is dismissed. Hearing fee is assessed at Rs. 100/-.