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Trilochan Choudhury Vs. Dayanidhi Patra - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 98 of 1957
Judge
Reported inAIR1961Ori158
ActsCode of Civil Procedure (CPC) , 1908 - Sections 13
AppellantTrilochan Choudhury
RespondentDayanidhi Patra
Appellant AdvocateR.N. Misra and ;R.S. Sahu, Advs.
Respondent AdvocateD.C. Sahu, Adv.
DispositionAppeal allowed
Cases ReferredChintamoni Padhan v. Paik Samal
Excerpt:
.....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..........and the plaintiff after adding interest at 6 per cent per annum, filed the suit under appeal. the suit is thus based on a foreign judgment.3. the learned lower court, relying on division bench decision of this court reported in chintamoni padhan v. paik samal, air 1956 orissa 136 held that the foreign judgment was not given on the merits of the case and that consequently section 13(b) of the civil procedure code would not apply. he further held that the decree of the rangoon court could not be executed here because, at the time of the institution of the suit, burma was not a 'reciprocating territory' within the meaning of section 44a of the civil procedure code.4. the judgment of the rangoon court may be quoted in full:'civil regular suit no. 1276 of 1951.dated rangoon the 9th june.....
Judgment:

B.L. Narasimham,C.J.

1. This is an appeal by the plaintiff against the decision of the Additional Subordinate Judge of Cut-tack dismissing his suit for recovery of a sum of Rs. 6000/- from the respondent on the basis of a decree given by the Second Judge of Rangoon (Ext. 2) in Suit No. 1276 of 1951, between the same parties.

2. The learned Judge of the Rangoon Court decreed the plaintiff's claim for Rs. 4318/8/0 on 9-6-52 and the plaintiff after adding interest at 6 per cent per annum, filed the suit under appeal. The suit is thus based on a foreign judgment.

3. The learned lower court, relying on Division Bench decision of this Court reported in Chintamoni Padhan v. Paik Samal, AIR 1956 Orissa 136 held that the foreign judgment was not given on the merits of the case and that consequently Section 13(b) of the Civil Procedure Code would not apply. He further held that the decree of the Rangoon Court could not be executed here because, at the time of the institution of the suit, Burma was not a 'reciprocating territory' within the meaning of Section 44A of the Civil Procedure Code.

4. The judgment of the Rangoon Court may be quoted in full:

'Civil Regular Suit No. 1276 of 1951.

Dated Rangoon the 9th June 1952.

T. Choudhury ..... Dayanidhi Patra.

Before :- U. Shwe B.A., B.L. 2nd Judgeof the Court.

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