SIBASANKAR GUPTA Vs. TILAKBALA KUNDU

JUDGEMENT

(1.) This is an application for stay filed by the appellant. The appeal is admittedly barred by limitation. Application for condonation of delay has been filed and by order dated 12.7.1999 notice has been directed to be issued on the question of limitation. Notwithstanding the fact that the delay is yet to be condoned and the appeal is yet to be admitted, the learned counsel for the appellant has filed this application for stay. The question as to whether the stay can be granted even though delay is yet to be condoned and the appeal is yet to be admitted has been heard on several dates.

(2.) ORDER 41, Rule 3 -A which is a new provision was inserted in the Code of Civil Procedure, 1908 (hereinafter referred to as the 'C.P.C.') by amending Act 104 of 1976. Order 41, Rule 3 -A, C.P.C. reads as follows: '3 -A. Application for condonation of delay - (1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. (2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the mater shall be finally decided by the Court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the case may be. (3) Where an application has been made under Sub -rule (1), the Court shall not make an order for the 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.'

(3.) IN the present case, a specific provision has been made in Sub - rule (3) of Rule 3 -A of Order 41,. C.P.C., prohibiting the Court from making any order of stay of execution of the decree until the appeal is admitted for hearing under Order 41, Rule 11, C.P.C. In Sub -rule (2) of Rule 3 -A of Order 41, C.P.C. it has been provided that the question of limitation has to be decided after issuing notice to the respondent and to be finally decided by the Court before the Court proceeds to deal with the appeal under Order 41, Rule 11, C.P.C. In view of the provisions contained in Order 41, Rule 3 -A(3), C.P.C. it cannot be said that the Court still possesses inherent power to grant stay even before condonation of delay. Since there is a specific bar in the Code, such power may not be overcome by falling back upon Section 151, C.P.C.