Adikanda Joshi Vs. Annarpurna Joshiani 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]. - 4,000/- per month to complete payment in nine instalments, all claim of plaintiffs shall be satisfied. 36,000/-,executing court being satisfied, shall release the properties from attachment.s.c. mohapatra, j.1. defendent is appellant against a decree for maintenance, separate residence and marriage expenses payable to second wife and daughter.2. although defendant was married and was having sons, he married plaintiff no. 1 again in the year 1954. shortly after marriage, dispute arose. birth of a female child could not mitigate the dispute and plaintiff no. 1 had to leave the matrimonial home in take year 1958 with her daughter leaving protection of the husband to take shelter in paternal home. in the year 1961 she filed a suit against defendant and his family members for maintenance of both mother and daughter. it was decreed directing payment of maintenance at the rate of rs. 35/- per month making the entire joint family property measuring about 10 acres charged for the same. in 1970, mother and daughter filed the suit for enhancement of maintenance, cost of residence and marriage expense of the daughter. in place of rs. 33/-, they claimed rs. 200/- per month. besides marriage expenses of daughter and cost of separate residence were also claimed. during pendency of the suit, plaintiffs initiated execution proceeding registered as execution case no. 17 of 1/71 for recovery of the arrear maintenance as per the previous decree. sons of defendant filed an application under section 21, rule 58 c.p.c. for release of their share from attachment. when this application was dismissed, plaintiffs filed an application for attachment, of the entire properties. executing court attached only three acres although the entire 10 acres 8 decimals were under charge. first wife and her sons filed a suit for declaration that their 7/8th share in the property is not liable for attachment and sale in execution of the decree. the suit for partition filed in the year 1972 was dismissed on the finding that a & b schedule properties therein are not liable for partition. first wife and her children filed an appeal against the same in the year 1974. when arrear maintenance for the subsequent years was added to be realised in the execution proceeding. civil revision was filed against such inclusion but the same was dismissed. thereafter, first wife and children filed petition for release of their 7/8th share from attachment. this was allowed and 1/8th share of defendant remained under attachment. writ of attachment was issued in respect of a.6.023 decs, which decree-holder applied to be put to sale. defendant filed objection. at that stage, appeal was allowed and partition suit was decreed. against this, plaintiff no. 1 has preferred second appeal in this court. suit for declaration that 7/8th share was not liable for attachment was decreed ex parte, objection by defendant not to put the attached land to auction was rejected. at that stage suit for enhancement of maintenance was decreed monthly maintenance was enhanced to rs. 200/-, rs. 7,000/-was directed to be paid by defendant for marriage expenses of daughter and rs. 6,000/- was directed to be paid for separate residence. this appeal arises out of the said decree. during pendency of this appeal various other litigations by way of revisions have been fought out. thus, there is no chance for the parties to remain under the same roof again.3. right of plaintiffs to maintenance, separate residence and marriage expenses of the daughter which is the liability of the defendant cannot be disputed. i cannot also ignore the fact that by passage of time, plaintiff no. 2 is now aged about 35 years and plaintiff no. 1 is about 60 years. defendant is now aged about 70 years. in such circumstances, a consolidated amount if decreed to be paid, plaintiffs would have some immediate benefit. otherwise the decree may remain in paper only, benefit of which will not be available to plaintiffs. parties are of tusra area in bolengir district. persons may not be available to purchase the decree if passed and pay any amount to the plaintiffs. in that view of the matter, i am inclined, in the peculiar circumstances of this case to direct payment of a consolidated amount fixing a time limit for payment.4. mr. s.n. sinha, learned counsel for defendant-appellant submitted that plaintiff no. 1 has got l/16th share in the joint family property which comes to about a.0.42 dacs. defendant would be entitled to only a.0.84 decs, as rest of the property are to be in share of his sons and first wife. mr. s.k. mund, learned counsel for plaintiffs on the other hand submitted that an amount of about rs. 53,000/- has remained in arrears. learned counsel for both parties in peculiar circumstances of this case, agree on principle that direction for payment of a consolidated amount would be just and beneficial. however, there is sharp differences between them in respect of quantum. in the background, i am to fix the quantum.5. parties are hindu brahmin. plaintiff no. 2 is now aged about 35 years. if on account of paucity of funds, she has not yet married, she can marry now on fund being available. no sooner she gets married, her right to be maintained by father would be lost. only plaintiff no. 1 is to be maintained. whether mother and daughter both or mother alone, defendant is to pay for separate residence. in spite of the fact that a preliminary decree for partition has been passed where plaintiff no. 1 would have 42 decimals to her share it is not known what would be its net yield. this land is in another village and it may be difficult for plaintiff no. 1 to get the same cultivated to receive the net yield after carving out the same in final decree proceeding. payment of a huge amount as arrears may be difficult for the defendant. no law is intended to have the effect of being the cause of ruin of a person liable. taking all these circumstances into consideration, i am inclined to fix a consolidated sum of rs. 36,000/- as the decretal amount payable by defendants to plaintiffs.6. keeping note that it may be difficult for an agriculturist to pay the entire amount at a time. i am inclined to direct that in case defendant pays rs. 4,000/- per month to complete payment in nine instalments, all claim of plaintiffs shall be satisfied. amount should be paid directly to plaintiffs or can be deposited in the executing court in execution proceeding no. 17/71. payment shall commence from the month of november, 1993. deposit or payment by 25th of every month shall be treated to be payment within time. in case defendant fails to pay any instalment within the time stipulated; decree of the trial court shall stand confirmed and can be executed. on payment of rs. 36,000/- within nine months, as has been directed, defendant shall have no further liability either for arrears or for future. i may make it clear that l/16th share of plaintiff no. 1 shall not be affected in any manner which will be subject to the result of the second appeal. sale of attached property in execution case no. 17 of 1971 shall remain stayed till instalments are paid regularly failing which execution case shall proceed for realisation of amount. on payment of rs. 36,000/-, executing court being satisfied, shall release the properties from attachment.7. in view of the aforesaid decision, believing that defendant would pay the amount within time, plaintiff no. 1 agrees that he would not press the application for restoration of the second appeal. a memorandum to that effect shall be filed.8. in result, appeal is allowed to the extent indicated above. no costs.