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2011 DIGILAW 1690 (ALL)

Balvir Singh v. Vijay Pal and Others

2011-07-14

BALA KRISHNA NARAYANA

body2011
Bala Krishna Narayana,J.;- 1. Heard learned counsel for the petitioner and Dr. G.S.D. Mishra for the contesting respondents. 2. Since the facts of the case are not in dispute, this writ petition is finally disposed of at this stage without calling of any counter affidavit. 3. The brief facts of the case are that the petitioner filed Original Suit No.362 of 2008 in the court of Civil Judge (Junior Division) against the defendant-respondent nos.6 to 9 for cancellation of will dated 27.11.1982 allegedly executed by one Late Roop Singh in favour of defendant-respondent nos.6 to 9. The said suit was decreed by learned Civil Judge (Junior Division) by his judgment and decree dated 8.2.2000. It appears that against the judgment and decree passed by the trial court the respondent nos.1 to 5 filed an appeal under Section 96 of Code of Civil Procedure before the District Judge, Aligarh on 26.3.2010 which was reported to be beyond time by 16 days on 26.3.2010. It is not disputed that the memorandum of appeal was not accompanied by any application under Section 5 of the Limitation Act for condonation of delay yet the learned District Judge by his impugned order dated 6.5.2011 not only admitted the aforesaid appeal but also passed an interim order in favour of respondent nos.1 to 5 on the same day staying the execution of the impugned decree. Learned counsel for the petitioner submitted that impugned order is clearly hit by the provisions of Order XLI Rule 3A of Code of Civil Procedure. He further submitted that since the appeal against the judgment and decree of the trial court was filed by the respondent nos.1 to 5 after the expiry of prescribed period of limitation, the respondent nos.1 to 5 were required to file an application for condonation of delay and unless the delay in filing the appeal was condoned the appellate court had no power to stay the execution of the decree against which the appeal had been preferred. 4. Learned counsel for the respondent nos.1 to 5 made his submissions in support of the impugned order. 5. 4. Learned counsel for the respondent nos.1 to 5 made his submissions in support of the impugned order. 5. After having considered the submissions made by the learned counsel for the parties present and perused the impugned order as well as other materials brought on record, I find that there is force in the submissions made by learned counsel for the petitioner and the same are liable to be accepted. There is no dispute about the fact that Civil Appeal No.79 of 2011 which was filed by the respondent nos.1 to 5 against the judgment and decree of the trial court dated 8.2.2010 on 26.3.2010 was reported to be beyond time by sixteen days on the said date. There is also no dispute about the fact that memorandum of appeal was not accompanied by any application for condoantion of delay. Order XLI Rule 3A of C.P.C. which is relevant for the purpose reads as under:- "3A. Application for condonation of delay.--(1) When an appeal is presented after the expiry of the period of limitation specified therefore, 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 matter 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." 6. What follows from the reading of Order XLI Rule 3A is that when an appeal is presented after the expiry of the limitation, it shall be accompanied by an application supported by an affidavit stating the facts on which the appellant relies to satisfy the court that there was sufficient cause for not preferring the appeal within the said period. What follows from the reading of Order XLI Rule 3A is that when an appeal is presented after the expiry of the limitation, it shall be accompanied by an application supported by an affidavit stating the facts on which the appellant relies to satisfy the court that there was sufficient cause for not preferring the appeal within the said period. Unless and until the said application is allowed no competent appeal can be said to be pending before the concerned appellate court and till the delay in filing the appeal is condoned the appellate court has no power to make an order for staying the execution of the decree which is appealed against. 7. Learned District Judge in the present case has very strangely by the impugned order not only admitted the defective appeal filed by the respondent nos.1 to 5 before him but he also passed an interim order in their favour staying the execution of the judgment and decree which was impugned before him. 8. In this view of the matter the impugned order can not be sustained and is liable to be set-aside. The writ petition is allowed. The order dated 6.5.2011 passed by District Judge, Aligarh in Civil Appeal No.79 of 2011 (Annexure No.5 to the writ petition) is hereby quashed. 9. This order will not preclude the respondent nos.1 to 5 from filing an application for condonation of delay in the appeal which has been preferred by them before the District Judge against the judgment and decree 8.2.2010 and in case any delay condonation application is filed the same shall be dealt with by the court concerned in accordance with law. Copy of this order shall be supplied to learned counsel for the petitioner within three days on payment of usual charges.