RAM CH SINHA Vs. SM. PROTIVA DUTTA

JUDGEMENT

(1.) This Rule was issued on the opposite party to show cause why the application for condonation of delay under section 5 of the Limitation Act filed along with the memo of appeal should not be allowed. While issuing the Rule Chittatosh Mukherjee J. issued an Ad-interim order of stay which was made effective till the hearing of the present application under section 5 of the Limitation Act. A condition was imposed upon the petitioner and that condition, I learn from the learned Advocate for the petitioner has been complied with.

(2.) Now, the question .is whether the ad-interim order of stay should be continued till the admission of the second appeal. The learned Advocate appearing for the opposite party submits that under the amended Code of Civil Procedure by virtue of order 41 rule 3A-I have no power to grant stay of execution of the decree so long as the matter is not heard out under order 41 rule 11 of the Code of Civil Procedure and as there is an express prohibition in the Code itself, rule 3A of Order 41. It is true that reading the provisions of order 41 rule 3A of the Code of Civil Procedure, the procedure to be adopted is that stay of execution of the decree against which the appeal is filed should not be granted until the appeal itself is admitted under order 41 rule 11 of the Code of Civil Procedure. Would this provision of the Code limit my powers u/s. 151 of the Code of Civil Procedure to grant ad-interim stay if the facts and circumstances of a particular case necessitate for ends of justice ?

(3.) Mr. Chatterjee appearing for the opposite party has placed several decisions before me to substantiate his contention that when there is any express provision in the Code. I cannot exercise my inherent power under section 151 of the code contrary to that provision. Reference may be made in this connection to the case Nainslngh Vs. Noonwar AIR 1970 SC 997. at page 999. Therein it has been held that the court cannot make use of section 151 Code of Civil Procedure where a party had his remedy provided elsewhere in the Code and neglected to avail himself of the same. In the facts and circumstances of that case where a remedy was available to the party by way of appeal under Order 43 of the Code of Civil Procedure, that remedy being not availed of by the party concerned the inherent power could not be exercised.