Research › Search › Judgment

Orissa High Court · body

2012 DIGILAW 199 (ORI)

Padmabati Behera v. Ramesh Chandra Behera

2012-04-17

M.M.DAS

body2012
JUDGMENT M.M. DAS, J. The backdrop of facts leading to the present case are that, the husband of Petitioner No. 1 as Plaintiff, filed Title Suit No. 1100 of 1993-1 before the Learned Civil Judge (Junior Division), Balasore seeking a decree for declaration of his right, title, interest & for eviction of the present opposite who are Defendants in the said suit. During pendency of the suit, the original Plaintiff having expired, the present Petitioners were substituted in his place. 2. The Opp. Parties appeared in the said suit & filed their written statement. But subsequently, they were set ex-parte & the suit, after being heard, was decreed ex-part by Judgment passed' on 24.01.2005 with a direction to the Opp. Parties Defendants to vacate the suit premises. After passing of the ex part Judgment & decree, the present petitioners levied Execution Case No. 6 of 2005 to execute the decree. The Opp. Parties-Defendants, who are the Judgment debtors in the execution case, appeared in the said case & filed an application under Section 47 of the Code of Civil Procedure questioning the executability of he decree. However, they did not pursue said petition. The Learned executing Court issued writ of delivery of possession to deliver possession of the disputed property to the Petitioners. The Civil Court Commissioner, who was directed to deliver possession of the suit property to the Petitioners, went to the spot the purpose of executing the writ of delivering of possession of 06.03.2012, but the Opp. Parties resisted him from executing the decree, for which the Commissioner submitted a report before the executing Court & prayed for necessary police held. The Petitioner as the decree holders also filed a petition on 12.03.2012 before the executing Court to render police for execution of the decree, which was allowed by the Learned executing Court. 3. While the matter stood thus, the Opp. Parties Judgment debtors filed a petition under Order 9, Rule 13 C.P.C. in the suit registered as C.MA No.43 of 2012 to set aside the ex-parte decree. They also filed an application to stay further proceeding of the Execution Case No. 6 of 2005 till disposal of the application under Order, 9 Rule 13 C.P.C. The said application for stay was heard by the Learned Court below on 20.03.2012 & was fixed for delivery of order to 22.03.2012 on 22.03.2012, the Opp. They also filed an application to stay further proceeding of the Execution Case No. 6 of 2005 till disposal of the application under Order, 9 Rule 13 C.P.C. The said application for stay was heard by the Learned Court below on 20.03.2012 & was fixed for delivery of order to 22.03.2012 on 22.03.2012, the Opp. Parties produced a copy of the order the Learned District Judge, Balasore passed in R.F.A. No. 44 of 2012, by which the further proceeding of the execution case was stayed. On such happening, the Learned Trial Court observed that since further proceeding in the execution case has been stayed by the Learned District Judge in the appeal, there is no necessity to consider the application filed for stay of the execution case. 4. Miss Mishra, Learned Counsel for the Petitioners submits that on the said date, i.e., 22.03.2012, the Petitioners for the first time could come to know that the Judgment debtors Opp. Parties have filed a regular First Appeal against the exparte Judgment passed in the suit along with an application for condonation of delay & for stay. She further submits that though the Petitioners lodged a Caveat before the Learned District Judge, lest the Opp. Parties do not obtain any order of stay by filing an appeal, copy of the appeal memo not the stay petition was served on the Learned Counsel for the Caveator before the Learned District Judge. Coming to know about the exparte order stay by the Appellate Court, the petitioners appeared in the said appeal before the Learned District Judge & filed & application on 27.03.2012 to advance the date fixed by the Appellate Court & to recall the exparte order of stay passed on 21.03.2012. The ground stated in the application are as follows:- "(a) No copy of the appeal memo application for condonation of delay & stay application was offered to be served on Mr. Shantanu Kumar Panda. Advocate after the appeal was filed: (b) The stay orders as appears to have been passed without condoning the delay in filing the appeal which is contrary to law; (c) Opportunity of filing objection or hearing has not been to the Caveator; (d) Concealing the pendency of order of stay petition in case No.6/2005 to 22.3.2012 before the Civil Judge (Junior Division), Balasore, the Appellants have issued the stay petition before the Appellate Court & obtained the stay." 5. The Learned District Judge, Balasore, after receiving the recall petition, directed to put up the matter on 06.04.2012. On 06.04.2012, the present Opp. Parties filed their objection to the said recall petition along with another application for hearing the petition for condonation of delay at the first instance, which was already pending, before disposal of the recall petition. The Learned District Judge, upon hearing the opposite & without inviting objection from the Petitioners, fixed the case to 09.04.2012 for hearing the application for condonation of condonation of delay stating that after hearing the said application, the recall petition shall be considered. The Petitioners, being aggrieved by the same have preferred the present writ application. 6. Miss Mishra, Learned Counsel vehemently urges that the Learned District Judge, before condoning the delay in filing the appeal, Could not have passed the interim order of stay, staying further proceeding in the execution case. She submits that before the appeal is admitted & the Court decides to hear the appeal on merit under Order- 41, Rule-11 C.P.C, the Appellate Court cannot entertain an application for stay of execution of the decree, against which the appeal has been preferred. For the above contention, she relied upon the Full Bench decision of this Court in the case of Ainthu Charan Parida v. Sitaram Jayanarayan Firm 1984 (II) OLR-819. The Full Bench in the said decision were considering as to whether an order rejecting a memorandum of appeal or dismissing the appeal following the rejection of an application under Section 5 of the Limitation Act for condonation of delay in preferring an appeal, is not a decree within the meaning of Section 2 (II) of the Code & answered the said question for affirmative. In Course of the Judgment, the Full Bench also thought it proper to examine the question as to whether the Appellate Court can pass & order of stay of execution of the decree, against which the appeal has been preferred & referring to sub-rule (3) of Rule 3-A of Order 41 of the Code, held that such an application for stay, cannot be enterained until delay in preferring the appeal is condoned & so long as the Court does not decide to hear the appeal after hearing under Rule-11. Till a decision under Rule-11 is taken by the Court to admit the appeal, there is no appeal in the eye of law, which remains at the threshold, but does not get an entrance. The exact words in the Full Bench decision with regard to the above, in paragraph-25 of this Judgment, is as allows:- "25. As provided in Sub-rule (2) 3-A of Order 41 of the Code, as amended, notice of the application for condoning delay under Sec 5 of the Limitation Act shall be issued to the Respondent & the matter shall be finally decided by the Court before it proceeds to deal with the matter under Rule 11 or Rule 13, as the case may be. Rule 9 provides for the registration of an appeal after admission & Rule 11 provides for admission of an appeal. Until & appeal is admitted there can be no adjudication 9f the rights of the parties. As provided in Sub-Rule (2) of Rule 3-A of order 41 of the code, the question relating to condonation of delay in preferring an appeal as to be decided before the Court proceeds under Rule 11, Sub-rule (3) of Rule 3-A makes the position further clear by providing that when 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 no, after hearing under Rule 11, decide to hear the appeal. In other words, what is evidently mean by the Legislature is that until delay in preferring the appeal is condoned & so long as the Court does not decide to hear the appeal after hearing under Rule 11, there is no appeal in the eyes of law. The appeal remains at the threshold, but does not get entrance. It follows that an order rejecting a memorandum of appeal as being barred by limitation before its admission & before the Court proceeds under Rule 11 of Order 41 cannot be said to be an order finally adjudicating the disputed between the parties so as to attract the definition of 'decree' within he meaning of Sec. 2 (2) of the Code." 7. This Court also finds that as noted by the Full Bench, Sub-rule (3)-A of Order 41, which was inserted into the Code by way of amendment with effect from 01.02.1977 clearly stipulates that application made under Section 5 of the Limitation Act for condonation of delay in filing the appeal, if made along with the memorandum of appeal, the Appellate Court is not to pass an order of stay of execution of the decree, against which the appeal is proposed to be filed till & until the Court hearing the matter under Rule 11 of Order 41 admits the same or in other words, until the delay in filing the appeal is condoned, it cannot be said that" the Appeal is pending before the Appellate Court, in which an order of stay can be passed. 8. In view of the above position of law, the impugned order passed by the Learned District Judge on 06.04.2012 posting the case to 09.12.2012 for hearing the application for condonation of delay at the first instance before hearing the application to recall the order of stay dated 21.03.2012 is considered, cannot be sustained & the said order is accordingly quashed. 9. This Court further finds that the order passed by the Learned District Judge on 21.03.2012 staying further proceeding of the executing case was also passed contrary to law. 10. As this juncture, Dr. A.K. Rath, Learned Counsel appearing for the Opp. Parties submits in his usual fairness that though there is no quarrel about the above proposition of law, in the event, the stay order passed by the Learned District Judge on 21.03.2012 (though contrary to law), .is vacated at this juncture or quashed by this Court, since writ of delivery of possession has already been issued by the executing Court, the Opp. Parties will be evicted immediately & will be rendered shelterless being thrown out to the street In such circumstances for ends of justice. Dr. Rath submits, that it may be directed to hear both the petition for condonation of delay as well as the petition for recalling the order of stay together on the same day. 11. However, as I find that the order of stay passed on 21.03.2012 is without jurisdiction as well as not sustainable in law, the said order stands quashed giving liberty to the Opp. 11. However, as I find that the order of stay passed on 21.03.2012 is without jurisdiction as well as not sustainable in law, the said order stands quashed giving liberty to the Opp. Parties of file a fresh application for stay of further proceedings of the execution case, in the event, on the next date, the petition for condonation of delay filed by the Opp. Parties is allowed & the Learned District Judge decides to hear to appeal under- Order 41 Rule 11 C.P.C. & admits the same. Such application may be filed immediately after the order is passed on the application for condonation of delay provided the same is allowed as aforesaid. 12. But, since in the execution proceeding, writ of the delivery of possession has already been issued, application for rendering police help has also been allowed by the executing Court, in the event, delay in filing the appeal is condoned by the Learned District Judge & the Opp. Parties file a fresh application for stay of the execution proceeding, the Learned District Judge is directed to dispose of the said application immediately after disposal of the application for condonation of delay & after hearing the appeal under provisions of Order 41 Rule 11 C.P.C. 13. If ultimately, the Learned District judge decides to heard the appeal on merit by condoning the delay in filing the appeal, he is further directed to dispose of the appeal by the end of June, 2012, as both the parties have already entered appearance. 14. The Writ application is accordingly disposed of with the above directions. Appeal disposed of.