LAKSHMI NARAYAN KASERA Vs. DHIRENDRA KUMAR JAIN

JUDGEMENT

(1.) IN this application, the appellant has prayed for an order of stay of the proceeding of Execution Case No. 5 of 2004 pending in the Court of Munsif at Hazaribagh. It has been stated that the respondents have filed the said Execution Case No. 5 of 2004 praying for execution of the impugned decree and for delivery of possession of the suit premises in their favour. A petition was filed before the executing Court praying for stay of the execution of the decree till disposal of this appeal, but the Executing Court by its order dated 8.3.2005 rejected the petition and directed the respondents to take steps for process of delivery of possession. The appellant apprehends that the Executing Court will issue writ delivery of possession if the further proceeding of the execution case is not stayed by this Court. It has been stated that the appellant is the tenant of the suit premises for last more than 30 years where he has been running a shop for earning livelihood. If the appellant is evicted from the suit premises in execution of the decree, the appeal shall become infructuous.

(2.) MR . Pradip Modi, learned counsel appearing on behalf of the appellant submitted that the appeal was filed after expiry of the limitation period and an application under Sec. 5 of the Limitation Act for condoning the delay of more than two years three months has been filed. Mr. Modi submitted that the stay matter can be heard and disposed of in a time barred appeal against the decree, even before an order of condonation of delay is passed. Learned counsel, therefore, insisted for passing an order on this application at this stage itself. Learned counsel, in support of his submissions, relied on a decision of Madras High Court in Gouse Bi V/s. Salima Bi.

(3.) IT is relevant to notice here that Rule 3A has been inserted in Order XLI of Code of Civil Procedure by the amending Act, 1976 whereby a procedure has been prescribed for securing the final determination of the question as to limitation even at the stage of the admission of the appeal. The said Order XLI, Rule 3A of the Code of Civil Procedure runs thus : -