State of Andhra Pradesh vs Tube, Tools and Hardware Mart

V. Bhaskara Rao, J.—This Revision Petition is directed against the order in I.A. No. 1043/1990 and I.A. No. 1124/1990 in unregistered A.S. on the file of the District Judge, Visakhapatnam, dated 14-12-1990.

The facts leading to this Revision Petition in brief are :

The revision petitioner suffered decree in O.S. No. 711/1985 on the file of the IV Addl. District Munsif, Visakhapatnam, in favour of the respondent herein. Aggrieved by the judgment and decree stated above, the revision petitioner filed an appeal in the Court of District Judge, Visakhapatnam. As there was delay in filing the appeal, he sought for condonation of delay u/s 5 of the Limitation Act in I.A. No. 1023/1990. He also filed another petition, I.A. No. 1043/ 1990 under Order 41 Rule 5 of C.P.C. seeking stay at execution in E.P. No. 304/1990 in O.S. No. 711/1985 on the file of the IV Add1. District Munsif, Visakhapatnam. The learned Judge granted conditional interim stay pending disposal of the appeal. At that stage, I.A. No. 1023/1990 u/s 5 of the Limitation Act was still pending. The respondent herein then filed a petition I.A. No. 1124/1990 for vacating the stay granted in I.A. No. 1043/1990 on ground that it is not in accordance with law. Both these petitions, namely I.A. No. 1043/1990 filed by the revision petitioner and I.A. No. 1124/1990 filed by the respondent came up for consideration together before the learned District Judge, Visakhapatnam. By the impugned order he dismissed I.A. No. 1043/1990 and allowed I.A. No. 1124/1990, holding that Order 41 Rule 3-A C.P.C is a mandatory provision and that the appellate court cannot grant any stay till the delay in filing the appeal is condoned. Hence this Revision Petition.

The short point that arises for consideration is whether Order 41 Rule 3-A(3) is a bar for grant of stay of execution under Order 41 Rule 5 C.P.C. during the pendency of the petition for condonation of delay in an unregistered appeal. I carefully perused the record and the impugned order. In the grounds of revision, it is stated that though Order 41 Rule 3-A(3) is a mandatory provision, the condition imposed by the appellate court has been complied with and hence I.A. No. 1043/1990 ought to have been allowed in the circumstances of the case. It is thus contended that the impugned order is illegal.

The relevant provision reads as under :

"3-A. Application for condonation of delay:-

(1) When an appeal is presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the court that he had sufficient cause for not preferring the appeal within such period.

(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the case may be.

(3) Where an application has been made under sub-rule (1), the Court shall not make an order for the 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, decide to hear the appeal."

A bare reading of the above provision indicates that the appellate court shall not make an order for stay of execution of the decree till the court does not decide to hear the appeal. It is needless to state that every appeal has to be heard in the first instance under Rule 11 of Order 41 and if it decides not to dismiss the appeal it follows that the same has to be disposed of in accordance with the other rules of Order 41. Rule 3-A is undoubtedly a mandatory provision. Hence it is clear bar for passing an order of stay of execution of the decree before the Court decides to hear the appeal. I am fortified in my above view by a judgment of this Court in Kariapudi Lakshmayya v. Makineni Tulasamma 1981 (1) ALT 422. It is held,

"Order 41, Rule 3-A(3) expressly prohibits the Court from making an order for the stay of execution of the decree unless the Court decides to hear the appeal after hearing the appeal under Order 41, Rule 11 of the Code of Civil Procedure. In the face of the mandatory provision under Order 41, Rule 3-A(3) the interim stay granted by the appellate court is illegal and the same has to be vacated."

The Learned District Judge has considered the relevant provision in its correct perspective and following the aforecited judgment of this Court, dismissed I.A. No. 1043/1990, and rightly so. I do not find any illegality or irregularity in the impugned order.

However, the learned Government Pleader has pointed out that the respondent has been permitted to withdraw the decretal amount that was deposited pursuant to the direction in I.A. No. 1043/1990, dated 8-11-1990 by furnishing security. He further stated that I.A. No. 1023/1990 u/s 5 of the Limitation Act is still pending, and the lower Court may be directed to dispose of the same. It is also stated that the security furnished by the respondent may be directed to enure to the benefit of the revision petitioner till the disposal of the appeal. It is true that the rights of the parties will have to be protected since the conditional order of stay has been acted upon. It is one thing if I.A. No. 1023 /1990 is dismissed but in case the petition is allowed and the appeal is registered, the same will have to be decided on its merits. In such a case it is directed that during the pendency of the appeal, the security furnished by the respondent will enure to the benefit of the revision petitioner. In other words, if the revision petitioner succeeds in the appeal, he can enforce the security and seek restitution u/s 144 of the C.P.C. taking advantage of the above security.

In the result, the Revision Petition is disposed of subject to the above observations regarding the security and its effect and the course to be adopted in I.A. No. 1023/1990. It is made clear that the learned District Judge may dispose of I.A. No. 1023/1990 strictly on its merits but he may do so as expeditiously as practicable. No costs.