T.R. Parameshwarappa vs T.V. Annaiah

S. Abdul Nazeer, J.—I have heard the learned Counsel for the parties. The petitioner was the defendant in O.S. No. 15 of 2010 on the file of the Civil Judge (Junior Division) and JMFC and the respondent was the plaintiff. The plaintiff filed the above suit for specific performance of an agreement for sale. The said suit was decreed on 17-9-2011. Feeling aggrieved by the said decree, the defendant filed an appeal before the Senior Civil Judge, Tarikere in R.A. No. 5 of 2011. He filed an application seeking stay of the said decree. Since there was delay in filing the appeal, the defendant also filed an application u/s 5 of the Limitation Act, 1963 seeking condonation of delay in filing the appeal. Before consideration of the application seeking condonation of delay, he pressed into service of the application seeking stay of the judgment and decree of the Trial Court. The lower Appellate Court has dismissed the said application by the impugned order.

Order 41, Rule 3-A(3) of the Civil Procedure Code, 1908 states that where an application has been made under sub-rule (1), the Court shall not make an order for 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. In the instant case, the delay has not been condoned. Therefore, question of considering the application seeking stay of the judgment and decree before condonation of delay does not arise. That is why the lower Appellate Court has rightly dismissed the application. Needless to mention here that if the lower Appellate Court condones the delay in filing the appeal, the petitioner is at liberty to make a fresh application seeking stay of the judgment and decree. If such an application is filed, the lower Appellate Court has to consider the same in accordance with law. The writ petition is dismissed subject to the above observations. No costs.