Tanuku Veera Venkata Satyanarayana Sarma vs Akula Raja Rao and others

The order in IA No. 1878 of 1998 in IA No.1874 of 1997 in CMA SR No. - of 1997 on the file of Senior Civil Judge, Tadepalligudem, dated 17-2-1998 refusing to grant stay of all further proceedings pending disposal of petition for condonation of delay i.e., IA No. 1874 of 1997 in filing CMA SR No. -of 1997, is challenged in this revision petition.

The short question that arises for consideration is whether Order XLI Rule 3A CPC is mandatory or directory. It is beneficial to extract the above provision for proper appreciation of the above question.

"(1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which tlie 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 10 reject the application without the issue of a notice to the respondent, notice thereof sliall be issued to the respondent and the matter shall be finally decided by the Court below 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 ihe stay of execution of the decree against which the appeal is proposed to be filed so long as the Court docs not, after hearing under Rule 11, decide to hear die appeal.''''

A plain reading of the above provision shows that the word ''shall'' lias been applied and hence it has to be deemed to be mandatory ex facie. While so, a Division Bench of Calcutta High Court in Sri Rani Satiji Mandir and Others Vs. Shyam Sundar Jhunjhunwala and Others, , has expressed a contrary view, but this Court in State of Andhra Pradesh Vs. Tube, Tools and Hardware Mart, , has held following Kariapudi Lakshmayya Makineni Tulasamma 1981 (1) ALT 422, mat it is mandatory.

I have once again considered the matter with the assistance of Sri K. Chidambaram, learned Counsel for the revision petitioner and Smt. Jayasree Sarathy and Smt. Himabindhu, learned Counsel for the respondents.

In Sri Rani Satiji Mandir''s case (supra) it is held-

"The provisions of Order 41, Rule 3A provides that the Court shall not make an order for stay in execution of a decree against which an appeal is proposed to be filed. The decree determines the rights of the parties with regard to all or any of the matters in controversy in the suit. "Order is the formal expression of any decision of a civil suit. Therefore, the legal consequences of a decree fundamentally differ from those of any order. That must be one of the reasons why in Order 43 Rule 2 the words "so far as may be" have been incorporated. So, in case of an order that is interlocutory in nature, that can be stayed for an interim period if the justice of the case so demands, provided an application for condonation of delay is there.

Further, Order 43 Rule 2 relates to procedural matters and matters relating to grant or refusal of stay cannot be said to be procedural matters by any sense of the term. Therefore, limited stay can be granted and Order 41 Rule 3A will not stand as a bar in view of the fact that Rule 3 A cannot apply in case of an order by virtue of Order 43 Rule 2 which enjoins application of the Rules of Order 41 in the matters of procedure and that also "so far as may be".

It is evident from the above judgment that the reason for holding that the said provision is directory and not mandatory is that Order XLIII Rule 2 CPC relates to procedural matters and matters relating to grant or refusal of stay cannot be said to be procedural by any sense of the term and hence limited stay can be granted under Order XLI Rule 3A CPC. With respect I hold that I do not agree with the above reasoning. In any case substantial rights of the parties are involved and it cannot be brushed aside lightly. It is another thing if the word ''shall'' is construed as ''may'' but there must be strong reasons for doing so. A statute has to be interpreted and given its plain meaning, but not otherwise. On a reading of the above judgment, I am unable to change my view expressed in my earlier judgment - Stale of Andhra Pradesh''s case (supra), In fact, I have followed the earlier judgment of this Court in Kariapudi Lakshamayya''s case (supra). It is needless to say that even a judgment rendered by this Court by a single Judge is binding upon this Court and if a contrary view is to be taken, the matter lias to be referred to a Division Bench.

In the circumstances, I hold that this CRP is devoid of merit and it is accordingly dismissed.

Before parting with the matter, it is considered just and proper to direct the learned senior Civil Judge, Thadepalligudem. to dispose of IA No.1874 of 1997 (petition for condonation of delay in filing CMA) as expeditiously as possible, before the rights of the parties are in any way affected by the impending execution proceedings. It is stated that the above IA is posted to 7-8-1998 and hence, if it is possible, it may be disposed of on that day or any day nearer to that day.

9, Learned Senior Civil Judge, will however dispose of IA No.1874 of 1997 on merits and if the delay is condoned CMA also strictly on merits. There will be no order as to costs.