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Union of India (Uoi) Vs. Kisan Khandelwal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberM.A. No. 14 of 1966
Judge
Reported inAIR1970Ori137
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 and 82
AppellantUnion of India (Uoi)
RespondentKisan Khandelwal
Appellant AdvocateB.K. Pal, Adv.
Respondent AdvocateR.N. Sinha, Adv.
DispositionAppeal dismissed
Cases ReferredState of Kerala v. Kesavan
Excerpt:
.....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.....r.n. misra, j. 1. this appeal is on behalf of the union of india against the order of the learned subordinate judge, bala-sore, dated 27-11-65 by which an application under section 47 c. p. c. made by the union of india was overruled. the short facts relevant for the decision of this case are the following. on 15-11-55 a money decree was obtained against the eailway. on 12-7-60 the first appeal was disposed of. execution case no. 48 of 1963 was levied on 15-7-63. on 20-12-63 the following order was passed by the learned subordinate judge in the execution case: 'it is seen from the original record that a report has not been made to the government, make a report to government as ordered on 14-12-63. this execution case is dismissed as premature.' thereafter a fresh execution ease was filed.....
Judgment:

R.N. Misra, J.

1. This appeal is on behalf of the Union of India against the order of the learned Subordinate Judge, Bala-sore, dated 27-11-65 by which an application under Section 47 C. P. C. made by the Union of India was overruled. The short facts relevant for the decision of this case are the following. On 15-11-55 a money decree was obtained against the Eailway. On 12-7-60 the First Appeal was disposed of. Execution case No. 48 of 1963 was levied on 15-7-63. On 20-12-63 the following order was passed by the learned Subordinate Judge in the execution case:

'It is seen from the original record that a report has not been made to the Government, Make a report to Government as ordered on 14-12-63. This execution case is dismissed as premature.'

Thereafter a fresh execution ease was filed on 2-5-64. Upon notice to the Railway in the execution case an objection under Section 47 C. P. C. was filed taking the stand that the execution was barred by limitation. The learned Subordinate Judge mainly concentrated on the question as to whether in view of the fact that the Court had made a mistake in not taking effective steps limitation can ever arise. Having heard Mr. Pal and Mr. Sinha. learned counsel for the respective parties, I am of the view that this appeal can be disposed of on a short point that until there is compliance with the provisions of Section 82 C. P. C. the decree is not in an executable stage and as such the period of limitation can really commence after that stage has reached. Until then it can be stated to be inchoate and limitation cannot be pleaded. My view is supported by a decision of the Patna High Court in AIR 1948 Pat 179, Governor General in Council v. Piramal, where Mr. Justice Ray took almost a similar view. I am thankful to Mr. Pal for having cited a decision reported in AIR 1966 Ker 104, State of Kerala v. Kesavan, which also clearly supports the view indicated above. Therefore, until there was compliance with the provision of Section 82 C. P. C., the question oflimitation could not arise In this case. The objection under Section 47 C. P. C. is, therefore, not maintainable. The execution is in time. The appeal is dismissed. Parties will bear their own costs.


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