RAMESH CHANDRA KALITA Vs. MIRA PATOWARI AND ORS.

JUDGEMENT

(1.) AN appeal was filed before the Lower Appellate Court against the judgment of the learned Munsiff. There was delay in filing the appeal and accordingly an application was filed for condonation of delay under Section 5of the Limitation Act. On that application for condonation of delay, notice was issued. Another application was filed under Order 41 Rule 5 for stay of the execution of the decree, the Lower Appellate Court did not grant stay, only because he held that stay can not be granted in view of Order 41 Rule 3A(3). Rule 3A(3) reads as follows:

(2.) A fair interpretation of Order 41 Rule 3 of the Code of Civil Procedure would be that it requires that the Appellant presents an appeal after expiry of the period of limitation, it shall be accompanied by an application supported by affidavit staling the reasons for delay in preferring the appeal along with the Memorandum of appeal, After -all Order 41 Rule 3Ais a procedural law and this procedural law test be interpreted in such a manner that to advance the cause of justice. If the rower to grant the stay is not given in exceptional cases this will cause sheer Injustice to an Appellant who may be prevented from filing an appeal in time because if compelling circumstances. After -all law can not be allowed or utilised to cause injustice. In such a situation the Court can exercise the power Under Section 151 of the Code of Civil Procedure to grant relief in such a case if the justice demands it. That is the mandate law and that is the requirement of law. Accordingly this 'Revision Application is allowed and the stay application shall be considered by the lower appellate Court in -accordance with law.

(3.) I have heard Shri G.P. Bhowmick, learned Advocate for the Petitioner and Sin i Kalita, learned Advocate for the Respondents.