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Krushna Chandra Balua and anr. Vs. Mt. Daimati Kisani - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 130 of 1964
Judge
Reported inAIR1966Ori239
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 23(2)
AppellantKrushna Chandra Balua and anr.
RespondentMt. Daimati Kisani
Appellant AdvocateR.N. Misra and ;R.C. Patnaik, Advs.
Respondent AdvocateR.N. Das and ;B. Dalai, Advs.
DispositionAppeal dismissed
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.....g.k. misra, j.1. the appeal is not pressed but the cross appeal has been argued at length. the facts relevant to the cross appeal are as follows :the appellant krushna chandra balua is admittedly husband of mst. daimati kissani, the respondent. she filed a suit for maintenance which ultimately ended in a compromise on 6-5-1960 in t. s. no. 48 of 1959 in the court of the munsif, sambalpur. under the compromise the respondent was entitled to a future maintenance of rs. 30 p.m., rs. 20 for herself and rs. 10 for her minor son if and when the appellant would fail to maintain them. as the appellant failed to maintain the respondent and her minor son, she started execution of the compromise decree. the husband raised an objection under section 47, c. p. c. that out of the maintenance of rs. 30.....
Judgment:

G.K. Misra, J.

1. The appeal is not pressed but the cross appeal has been argued at length. The facts relevant to the cross appeal are as follows :

The appellant Krushna Chandra Balua is admittedly husband of Mst. Daimati Kissani, the respondent. She filed a suit for maintenance which ultimately ended in a compromise on 6-5-1960 in T. S. No. 48 of 1959 in the Court of the Munsif, Sambalpur. Under the compromise the respondent was entitled to a future maintenance of Rs. 30 p.m., Rs. 20 for herself and Rs. 10 for her minor son if and when the appellant would fail to maintain them. As the appellant failed to maintain the respondent and her minor son, she started execution of the compromise decree. The husband raised an objection under Section 47, C. P. C. that out of the maintenance of Rs. 30 p.m., Rs. 10 cannot be granted in favour of the son as he was not a party to the compromise decree. The learned executing Court overruled this objection. In appeal however, the learned Subordinate Judge accepted it. This cross appeal has been filed against the appellate order.

2. The learned lower appellate Court misconceived the legal position. Under Section 23(2)(b) of the Hindu Adoptions and Maintenance Act, 1956, it is laid down that:

'23. In determining the amount of maintenance, if any, to be awarded to wife, children or aged or infirm parents under this Act, regard shall be had to- (b) 'the reasonable wants of the claimant'. In T. S. No. 48 of 1959 the claimant was the mother. As a part of her wants she put in a claim of Rs. 10 for her minor son, who admittedly resides with her. It cannot be disputed that when a minor child lives with the mother, the necessities of the child constitute the reasonable wants of the mother. Even though the minor son is not a party to the suit, the compromise recognised the needs of the child as constituting the reasonable wants of the minor. The learned lower appellate Court was not alive to this aspect of the matter.

3. In the result, the appeal fails without costs and the cross appeal is allowed with costs.

Hearing fee of Rs. 50 to the respondent.


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