SHAIKH IBRAHIM JANMOHAMMAD Vs. TEKCHAND FAKIRCHAND RATHOD

JUDGEMENT

(1.) The facts giving rise to this revision application are that the respondents (hereinafter referred to as "the plaitiffs"] tiled Civil Suit No. 196 of 1984 in the Court of the 3rd Additional Small Cause Judge, Pune, for eviction of the petitioner (hereinafter referred to as "the defendant") for arrears of rent. The suit was decreed ex parte on 20th September 1984, as neither the defendant nor his Counsel appeared. The defendant preferred an appeal on 7th October 1985 and along with the memo of appeal he filed an application for condonation of delay. He also applied for interim stay of execution of the ex parte decree. Interim stay was granted on 9th October 1985. Notice of the application for condonation of delay was issued to the plaintiffs. The learned Counsel for the plaintiffs opposed stay of execution pending the decision on the application for condonation of delay. The learned trial Judge, on hearing the parties, passed the order in the following terms rejecting the said application and vacated the ad interim stay earlier granted by him : -

(2.) The learned Counsel for the defendant contends that the learned trial Judge was not right in applying the provisions of sub-rule (3) of the 3-A of Order XLI, Civil Procedure Code and rejecting the application for stay. According to him, Rule 3-A was inserted in Order XLI, Civil Procedure Code by Bombay High Court Notificotion No. P. 6324/60 dated 30th September 1968, Clause 103. He submits that the object behind inserting the provision of Rule 3-A in Order XLI, Civil Procedure Code was that the practice of admitting the appeal subject to the provisions as to limitation was disapproved by the Privy Council and, therefore, it was considered necessary to adopt a procedure for securing final determination of the question as to limitation at the stage of admission itself. He also submits that with the same object Order XLI, Civil Procedure Code was amended by Act 104 of 1976 and thereby Rule 3-A was inserted in Civil Procedure Code. He submits that by Section 97 of the Amending Act 104 of 1976 the State amendments which were not inconsistent with the provisions of the Principal Act, as amended by Act 104 of 1976, were retained. Thus, according to the learned Counsel, the amendment made by the Bombay High Court by inserting Rule 3-A in Order XLI, Civil Procedure Code being consistent with the Principal Act as amended, does not stand repealed. He submits that as per the Bombay amendment Rule 3-A does not require that the Court shall not make any order for stay of execution before admitting the appeal, pending the decision of the application for condonation of delay, and, therefore, the order passed by the learned trial Judge, without noticing the State amendment, is bad in law.

(3.) The learned Counsel for the plaintiffs, on the other hand, contends that the Bombay High Court had amended Order XLI, Civil Procedure Code by inserting Rule 3-A in the year 1966. The Central Government extensively amended the Code of Civil Procedure, 1908, in the year 1976 by enacting Act 104 of 1976 and by that Act Rule 3-A was inserted and it came into force from 1st February 1977. According to him, the subsequent amendment by the Central Government to the Code of Civil Procedure overrides the earlier Bombay High Court amendment to the Code of Civil Procedure.