MADHU KANT BAJORIYA Vs. MANORANJAN DAS AND ORS.

JUDGEMENT

(1.) The judgement debtor in an ex parte eviction decree has preferred the instant revisional application. Upon such ex parte decree being passed, the petitioner took out an application under Order 9, Rule 13 of the Code of Civil Procedure, giving rise to Miscellaneous Case No.15 of 2018. Such Miscellaneous Case was accompanied by an application for condonation of delay in filing the same. During pendency of such condonation application, the petitioner prayed for stay of execution of the eviction decree. By virtue of the impugned order dated July 11, 2018 the court below refused such prayer for stay in view of the condonation application not having been allowed as yet.

(2.) It is submitted by learned Senior Advocate appearing for the petitioner that there is no absolute fetter to the court in passing an order of stay even before condonation is allowed. Undoubtedly, in such cases, extreme caution has to be maintained by the Court, but there is no strict bar under the law in passing such order. Learned Senior Advocate placed reliance in this context on a Division Bench judgement of this Court reported in 2012 (2) CLJ (Cal) 446, (Md. Ali Sardar and ors. v. Hossain Ali Mondal being dead) where the Division Bench reiterated the principle laid down in Shyam Sundar Sarma's case reported at AIR 2005 SC 226 (Shyam Sundar Sarma v. Pannalal Jaiswal and ors.) . In such judgement it was held, in the context of appeal-ability, that an order dismissing an application under Section 5 of the Limitation Act, accompanying an application under Order 9, Rule 13 of the Code of Civil Procedure, would tantamount to an order passed in the latter application. It is argued on behalf of the petitioner that the said ratio would indicate that any order of stay passed in connection with the present condonation application would, in effect, be an order passed in the Miscellaneous Case under Order 9, Rule 13 of the Code of Civil Procedure itself. As such, the logic of the trial court is erroneous.

(3.) In controverting such arguments, learned Senior Advocate appearing on behalf of the opposite parties argues that, in view of pendency of the condonation application, the hands of the court below were tied and no interim order could be passed at all prior to such application for condonation being allowed, if at all. In this context, learned Senior Advocate cites a judgement reported at (2009) 2 SCC 694 (State of West Bengal and ors. v. Somdeb Bandyopadhayay and ors.) where it was held by the Hon'ble Supreme Court that the passing of interim orders during pendency of a condonation application was impermissible as the appeal itself was non est in the eye of law, without it being entertained.