(1.) IN a suit for partition, preliminary decree has been passed. The subject matter covers both the agricultural lands and house property. The petitioners herein have preferred an appeal as against the said preliminary decree. There is a delay in filing the said appeal. They have also, therefore sought for condonation of delay which is yet to be heard and decided. In the meantime, they have sought for stay of further proceedings in the final decree proceedings already initiated in respect of the said preliminary decree. The learned Appellate judge, in the impugned order, in view of Order XLI rule 3-A (3) CPC, has held that until the aspect relating to condonation of delay is heard and decided and until the delay is condoned, the question of granting of stay does not arise.
(2.) IN support of the conclusion reached by the learned Appellate Judge, Sri Harish kumar, learned counsel for the respondent, refers to a decision of this Court in mahadevappa and Ors. v. Mallappa and Ors. A learned Single- Judge of this Court has held therein that where a belated appeal is preferred against a preliminary decree, until the delay is condoned, stay of the decree appealed against cannot be granted in'view of Order XLI Rule 3-A (3) CPC.
(3.) THE distinction between the execution of a decree appealed against and stay of final decree proceedings in respect of a preliminary decree that is appealed against, does not appear to have been canvassed before the learned single Judge who decided the above matter, nor has the learned Single Judge adverted to that distinction. Now that the said distinction is pressed into service in course of arguments in this matter and now that I am finding that the said distinction makes all the difference, any further reliance upon the said decision of the learned Single Judge would be of no avail to the learned counsel for the respondent.