Madhu Kant Bajoriya vs Manoranjan Das & Ors.

The judgement debtor in an ex parte eviction decree has preferred the instant revisional application. Upon such ex parte decree being passed, the

petitioner took out an application under Order 9 Rule 13 of the Code of Civil Procedure, giving rise to Miscellaneous Case No.15 of 2018. Such

Miscellaneous Case was accompanied by an application for condonation of delay in filing the same. During pendency of such condonation application,

the petitioner prayed for stay of execution of the eviction decree. By virtue of the impugned order dated July 11, 2018 the court below refused such

prayer for stay in view of the condonation application not having been allowed as yet.

It is submitted by learned Senior Advocate appearing for the petitioner that there is no absolute fetter to the court in passing an order of stay even

before condonation is allowed. Undoubtedly, in such cases, extreme caution has to be maintained by the Court, but there is no strict bar under the law

in passing such order. Learned Senior Advocate placed reliance in this context on a Division Bench judgement of this Court reported in 2012 (2) CLJ

(Cal) 446, (Md. Ali Sardar and ors. Vs. Hossain Ali Mondal being dead) where the Division Bench reiterated the principle laid down in Shyam Sundar

Sarma’s case reported at AIR 2005 SC 226 (Shyam Sundar Sarma vs. Pannalal Jaiswal and ors.).

In such judgement it was held, in the context of appellability, that an order dismissing an application under Section 5 of the Limitation Act,

accompanying an application under Order 9 Rule 13 of the Code of Civil Procedure, would tantamount to an order passed in the latter application. It is

argued on behalf of the petitioner that the said ratio would indicate that any order of stay passed in connection with the present condonation application

would, in effect, be an order passed in the Miscellaneous Case under Order 9 Rule 13 of the Code of Civil Procedure itself. As such, the logic of the

trial court is erroneous.

In controverting such arguments, learned Senior Advocate appearing on behalf of the opposite parties argues that, in view of pendency of the

condonation application, the hands of the court below were tied and no interim order could be passed at all prior to such application for condonation

being allowed, if at all. In this context, learned Senior Advocate cites a judgement reported at (2009) 2 SCC 694 (State of West Bengal & ors. vs.

Somdeb Bandyopadhayay & ors.) where it was held by the Hon’ble Supreme Court that the passing of interim orders during pendency of a

condonation application was impermissible as the appeal itself was non est in the eye of law, without it being entertained.

The aforesaid judgement is sought to be distinguished in reply on behalf of the petitioner on the ground that the case under consideration before the

Hon’ble Supreme Court arose from an appeal, albeit in connection with a writ appeal, in respect of which the provisions of the Code of Civil

Procedure apply in case of gaps in writ rules and/or on principle. Learned Senior Advocate for the petitioner places the provision contained in Order

XLI Rule 3A(3) of the Code of Civil Procedure, which stipulates that where an application has been made under sub-rule (1) of the said Rule for

condonation of delay, the Court shall not make an of stay of execution of the decree, against which the appeal is proposed to be filed, so long as the

court does not, after hearing under Rule 11, decides to hear the appeal. Hence, it is argued, the ratio laid down by the Hon’ble Supreme Court was

in the light of the said provision relating to appeals and could not apply to the present case, which emanates from a proceeding under Order 9 Rule 13

of the Code of Civil Procedure.

Upon hearing both sides, it appears that the line of distinction argued on behalf of the petitioner, distinguishing the judgement of the Hon’ble Apex

Court cited by the opposite parties from the present case, is acceptable. As such, since the present matter arises out of a proceeding under Order 9

Rule 13 of the Code of Civil Procedure, the court’s hands in passing an order of stay, even during pendency of connected condonation application,

were not fettered absolutely, in the absence of any provision akin to Order XLI Rule 3A(3) of the Code of Civil Procedure in respect of Order IX

Rule 13 matters. In case of exigencies, the court could always exercise its inherent powers ex debito justitiae to grant stay or other interim relief to the

petitioner. This aspect of the matter was not considered at all by the court below while passing the impugned order.

Accordingly, C.O.No.2350 of 2018 is disposed of by setting aside the impugned order and directing the learned Civil Judge (Junior Division),

Additional Court at Sealdah, District- South 24 Parganas to hear afresh the ad interim prayer for stay made by the present petitioner in connection

with the condonation application filed by the present petitioner in Miscellaneous Case No. 15 of 2018, upon hearing both sides, as expeditiously as

possible, but not later than within a fortnight from the date of communication of this order to the said court. There will be no order as to costs.