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Musala Annaji Rao and anr. Vs. Boggarapu Papaiah Setty - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAndhra Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 172 of 1973
Judge
Reported inAIR1975AP73
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rules 1, 1(1), 1(2), 1(3), 5, 9 and 11
AppellantMusala Annaji Rao and anr.
RespondentBoggarapu Papaiah Setty
Appellant AdvocateChalla Sitharamaiah, Adv.
Respondent AdvocateN. Ramamohana Rao, Adv.
DispositionAppeal allowed
Excerpt:
(i) civil - procedure - order 41 rule 1 of code of civil procedure, 1908 - application for stay of execution of decree pending appeal and application for condoning delay in filing of appeal - order 41 prescribe procedure for preferring regular appeal from original decree and manner of presentation, admission, registration and hearing of appeal and provide grant of stay of proceedings and execution of decree by appellate court for sufficient cause. (ii) limitation - condonation - order 41 rules 5 and 1 (3) of code of civil procedure, 1908 - appellate court can try appeal which was filed beyond time unless dismissed under rule 11 or insufficiency of reason for condonation of delay - order 41 has wide ambit include all type of appeals - held, mere presentation of memo of appeal mean.....kondaiah, j.1. this letters patent appeal arising out of o. s. no. 93 of 1969 on the file of the additional subordinate judge's court, kurnool and directed against the order of our learned brother, muktadar j. dismissing at s. r. stage an application for stay of execution of the decree in the suit pending an unnumbered appeal and an application for condoning the delay in the filing of the appeal, gives rise to a short but important and interesting question of law, viz.,'whether the court is competent or has jurisdiction and power to grant stay of execution of the decree pending admission and registration of a regular appeal filed beyond the period of limitation provided therefor, or pending disposal of the application filed for condonation of delay in filing the appeal?'2. in order to.....
Judgment:

Kondaiah, J.

1. This Letters Patent Appeal arising out of O. S. No. 93 of 1969 on the file of the Additional Subordinate Judge's Court, Kurnool and directed against the order of our learned brother, Muktadar J. dismissing at S. R. stage an application for stay of execution of the decree in the suit pending an unnumbered appeal and an application for condoning the delay in the filing of the appeal, gives rise to a short but important and interesting question of law, viz.,

'Whether the Court is competent or has jurisdiction and power to grant stay of execution of the decree pending admission and registration of a regular appeal filed beyond the period of limitation provided therefor, or pending disposal of the application filed for condonation of delay in filing the appeal?'

2. In order to appreciate the scope of the question, it is necessary to state briefly the material facts and circumstances that gave rise to it. The respondent herein Bog-garapu Papaiah Setty instituted a suit, O. S. No. 93 of 1969 on the file of the Court of the Subordinate Judge, Kumool for recovery of a debt of Rs. 5,000/- on the foot of a promissory note executed by the father of the appellants herein, one Eswara Rao and his brother-in-law Sajjan Kumar on 4th July 1966. The 1st defendant is the father of the defendants 2 and 3, the appellants herein and the 4th defendant is the 1st defendant's brother-in-law, the joint executant. The 4th defendant was given up by the plaintiff on 13th March 1970 when the suit was dismissed in so far as he was concerned. The suit after trial was decreed against the defendants 1 to 3 on August 31, 1970. There appears to be some delay in the obtaining of the certified copies of the judgment and decree of the Court below by the appellants. In fact, they were delivered to them only on June 30, 1973. Thereafter, a regular appeal was filed on July, 3, 1973 in the District Court, Kurnool against the judgment and decree of the trial Court along with an application to condone the delay in presenting the appeal. The memorandum of appeal was returned to the appellants on 7-12-1973 for presentation to the proper Court, as the District Court had no pecuniary jurisdiction to entertain it. Thereupon the memorandum of appeal has been fifed in this Court on December 10, 1973 along with an application C. M. P. No. 8345/73 to condone the delay of 2 years, 11 months and 8 days in presenting the appeal. The appellants have also filed another application, C. M. P. S. R. No. S0778/ 73 for stay of the execution of the decree. That application has been dismissed by our learned brother. Muktadar, J., on 18-12-1973 relying on the decision of our learned brother, A. V. Krishna Rao, J. in C. M. P. No. 5573 of 1971 etc., dated 11th July 1972 (Andh. Pra.). Hence this Letters Patent Appeal.

3. The sum and substance of the contentions of Mr. Chalk Sitaramayya, the learned counsel for the appellants, is that mere is an 'appeal' within the meaning of Order 41, Rule 1 C. P. C., when a Memorandum of appeal is presented in this Court though beyond the period of limitation prescribed therefor and unnumbered on the date of the disposal of the application for stay and, therefore, the learned Judge erred in holding that Order 41 Rule 1 (S) C. P. C. bars the jurisdiction of this Court to enter-tain this application. This claim advanced on behalf of the appellants has been resisted by Sri N. Rama Mohan Rao, the learned counsel for the respondent herein contending inter aha that Sub-rule 3 of Rule 1, Order 41 of the Code of Civil Procedure is a special provision dealing with a case where an appeal is presented out of time and there is no appeal until the memorandum of appeal is admitted and registered. In other words, according to the counsel, there is no appeal in the eye of kw until the memorandum of appeal is admitted and registered in accordance with the provisions of Order 41 C. P. C. In support of his stand, he strongly relied upon the decisions of Venkatesam, J. and A. V. Krishan Rao J. in C. M. P. No. 4920/63 dated 25-6-1963 and C. M. P. No. 5573/71 dated 11-7-1972 respectively and the decisions of T. C. Ragha-van, J. (as he then was) in Ramayyan v. Ashta Moorthi Namboodiri, 1962 Ker LT 500.

4. For a proper appreciation of the respective contentions of the parties, it is not only desirable but necessary to refer briefly to the scheme, intendment and con-tent of Order 41 C. P. C. Order 41 consisting of 37 rules may conveniently be divided into 6 parts. Rules 1 to 4 deal with the presentation of appeal against a decree or order whereas rules 5 to 8 refer to stay of proceedings and of execution in the trial court. Rules 9 to 15 prescribe the procedure on admission of appeal whereas rules 16 to 29 lay down the procedure for hearing of appeals. The method and manner of preparation of judgment and decree in appeal are dealt with, in rules 30 to 34 and 35 to 37 respectively. The very purpose and intend-ment of Order 41 is to prescribe the proce-dure for preferring regular appeals from ori-ginal decrees. It provides for an exhaustive procedure relating to method and manner of presentation of appeals, admission, registration and hearing of appeals and preparation of judgment and decrees in appeals. That apart, it specifically provides for the grant of stay of proceedings and of execu-tion of the decrees by the appellate Court for sufficient cause, pending disposal of the appeals. This, in short, is the scheme and intendment of Order 41.

5. We shall now proceed to examine the competency of the appellate court to stay the execution of the decree of the trial Court pending an unnumbered appeal preferred after the expiry of the period of limitation. The solution to the problem largely depends upon the provisions of Order 41, Rule 5 read with Rules 1 and 11 to which we shall presently refer. Order 41, Rule 5 empowers the appellate Court to grant stay of execution of the decree or order for sufficient cause. To put it differently, the mere filing of an appeal shall not operate as stay of operation or the decree or order appealed from, but the appellate Court may for sufficient cause grant stay of execution of such decree pending the appeal. It has therefore first to be seen whether on the date when the application for stay was dismissed by the learned Single Judge, it could be said that there was an appeal within the meaning of Order 41, Rule 5 C. P. C. We may conveniently refer here to the method and manner of presentation of appeals. Rule 1 piescribes the procedure for presentation of appeals from regular decrees. Sub-rule (1) of Rule 1 requires the appeal to be preferred in the form of a memorandum signed by the appellant or his pleader along with a copy or the decree appealed from and of the judgment and presented to the Court. Presentation of a memorandum of appeal with a defective vakalatnama is not proper presentation. Sub-rule (2) of Rule 1 indicates the contents of the memorandum of grounds whereas under Rule 2 the memorandum of grounds has to be set forth concisely under distinct heads without any argument or narrative. The Madras High Court had added Sub-rule (3) to Rule 1 as early as on 27-1-1921 and the same has been made applicable to Andhra Pradesh. It reads as follows:--

'When an appeal is presented after the period of limitation prescribed therefor it shall be accompanied by a petition 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, and the Court shaft not proceed to deal with the appeal in any way (otherwise than by dismissing it either under Rule 11 of this order or on the ground that it is not satisfied as to the sufficiency of the reasons for extending the period of limitation) until notice has been given to the respondent and his objections, if any, to the Court acting under the provisions of Section 5 of Act IX of 1908 have been heard.'

6. This sub-rule is attracted when an appeal is presented after the period of limitation prescribed therefor. Such memorandum of appeal has to be presented along with an application supported by an affidavit setting forth the facts and circumstances under which the appeal is filed. In such an event, the Court is precluded from proceeding to deal with the appeal in any way except by dismissing it either under Rule 11 of Order 41, or on the ground that there are no valid and sufficient reasons for extending the period of limitation. The power of the appellate Court to deal with the appeal except in the two contingencies referred to above is circumscribed by a condition that notice has to be given to the respondent and his objections, if any, for the appellant not preferring the appeal within the period of limitation have to be heard. This sub-rule will have no application when the memorandum of appeal is preferred or presented within the period of limitation prescribed therefor. It shall come into play only, as pointed out earlier when the memorandum of appeal is preferred out of time. Admittedly, such an appeal at that stage will not and cannot be numbered unless and until the application for extending the period of limitation is favourably ordered.

7. Can a memorandum of appeal presented beyond the period of limitation prescribed therefor be considered to be an appeal within the meaning of Sub-rule (3) of Rule 1 as well as Rule 5 of order 41 so as to empower the appellate Court to grant stay of execution of the decree appealed from, for sufficient cause? The answer to this question depends upon the meaning and content of the expression 'appeal' used in Sub-rule (1) of Rule 5 as well as Sub-rule (3) of Rule 1 of Order 41. The expressions 'appeal' and 'memorandum of appeal' have not been defined under the Code of Civil Procedure or under the General Clauses Act. We may therefore refer to the ordinary dictionary meaning of the term 'appeal'. The term appeal is defined in Webster's dictionary as the removal of a cause from an inferior to a superior Court for the purpose of testing the soundness of the decision of the inferior Court. The terms 'appeal' and 'memorandum of appeal' are two separate and independent expressions used to denote two different and distinct things. A careful perusal of the several provisions of Order 41 clearly indicates that the jurisdiction of the appellate Court is wide enough to review the decision of an inferior Court on any valid or justifiable ground. As observed by a Full Bench of the Madras High Court in Chapman v. Moidin Kutti, (1899) ILR 32 Mad 68 at P. 80 the expression 'appellate jurisdiction' means 'the power of a superior Court to review the decision of an inferior Court.' The very power vested in the appellate court for granting stay of execution of the decree appealed from, is founded on the basis of fact that there is an appeal before it. If there is no appeal of any kind before the appellate Court, the question of granting stay pending an appeal will not arise. Hence, we have to see whether the presentation of the memorandum ot appeal signed by the appellant or his pleader but beyond the period of limitation prescribed therefor, would give jurisdiction to the appellate Court to grant stay of execution of the decree appealed from, on the ground that an appeal is pending before it.

8. The expression used in Sub-rule (3) of Rule 1 is 'an appeal presented' whereas in Sub-rule (1) of Rule 1 it is 'appeal preferred in the form of a memorandum signed by the appellant or his pleader.' The words 'preferred' and 'pre-sented' have, no doubt, not been defined in the Code of Civil Procedure. But still they must be construed to be having a meaning of wider import than the expression 'entertain'. We may notice in this context the decision of the Supreme Court in L. E. Works v. Assistant Commissioner Sales Tax, : [1968]1SCR505 , wherein the scope and meaning of the word 'entertained' used in the proviso to Section 9 of the U. P. Sales Tax Act (15 of 1948) had been considered. The word 'entertained' was held to mean 'to deal with or admit to consideration.' The learned Judge, Hidayatullah J. (as he then was) v ho spoke for the Court, while considering the distinction between the expressions 'appeal' and 'memorandum of appeal', observed thus:

'The appeal is the judicial examination, the memorandum of appeal contains the grounds on which the judicial examination is invited. For purposes of 'limitation and for purposes of me Court it is required that a written memorandum of appeal shall be filed. When the proviso speaks of the entertainment of the appeal, it means that the appeal such as was filed will not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax.'

9. The term 'appeal' wherever used in Order 41 clearly appears to be of wide import so as to take in all types of appeals. Where the memorandum of appeal has been presented as indicated in Sub-rules (1) and (2) of Rule 1 of Order 41 and within the period of limitation prescribed therefor, it must be held that there is a competent and valid appeal. However, where the presentation of the memorandum of appeal is defective on some ground or other and is not in consonance with the provisions of Sub-rules (1) and (2) of Rule 1 or is presented beyond the period of limitation prescribed therefor, it may be called an irregular, incompetent, unmaintainable or unnumbered appeal. Nonetheless, it is an appeal in the eye of law for all practical purposes. This view of ours gains support from some decided cases to which we shall presently refer. In Nagendranath v. Suresh, AIR 1932 PC 165 at P. 167, Sir Dinshah Mulla speaking for the Judicial Committee ruled thus:

'There is no definition of appeal in the Procedure Code, but their Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a Subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent.'

10. The next important decision is that of the Supreme Court in Rajakulkarni v. State of Bombay, AIR 1954 SC 73 at P. 74 wherein it was observed as follows:

'Whether the appeal is valid or competent is a question entirely for the Appellate Court before whom the appeal is filed to determine, and this determination is possible only after the appeal is heard but there is nothing to prevent a party from filing an appeal which may ultimately be found to be incompetent e.g. when it is held to be barred by limitation or that it does not lie before that Court or is concluded by a finding fact under Section 100 of the Civil Procedure Code. From the mere fact that such an appeal is held to be unmaintainable on any ground whatsoever it does not follow that there was no appeal pending before the Court. Article 182 (2) of the Indian Limitation Act prescribes three years' period of limitation for the execution of a decree or order to run from the date of the final decree or order of the Appellate Court 'when there has been an appeal.' The Privy Council construed the letter phrase fo mean that an application by a party to the Appellate Court to set aside or revise a decree or order of a Court subordinate thereto is an 'appeal' within the meaning of the above provision even though it is irregular or incompetent, or the persons affected by the application to execute were not parties, or it did not imperil the whole decree or order. They refused to read into the words any qualification either as to the character of the appeal or as to the parties to it. 'Nagendranath v. Suresh Chandra, AIR 1932 PC 165.'

11. A question whether an order dismissing an appeal presented under Section 30 after the period of limitation prescribed therefor was under Section 30 (2) or under Section 31 of the Income-tax Act, 1922 fell for consideration before the Supremo Court in Messrs. Mela Ram & Sons v. Commissioner of Income-tax, Punjab, : [1956]29ITR607(SC) . It was held that an appeal presented out of time is nonetheless an appeal and an order dismissing it as time-barred is one passed in appeal. We may usefully refer to the reasons for this conclusion given by the learned Judge. Venkata-rama Ayyar J., speaking for the Court;

'It is well established that rules of limitation pertain to the domain of adjectival law, and that they operate only to bar the remedy but not to extinguish the right. An appeal preferred in accordance with Section 30 (1) must, therefore, be an appeal in the eyeof law, though having bean presented beyond the period mentioned in Section 30 (2) it is liable to be dismissed 'in limine.'

12. To the same effect is the decision of Punjab High Court in C. W. Co-op. Transport Society v. Punjab Stats, .

13. We shall now advert to the submission advanced on behalf of the respondent that there can be no appeal until a memorandum of appeal is registered under Rule 9 of the Order 41 C. P. C. It is pertinent to notice that under Rule 1, a memorandum of appeal has to be presented to the appellate Court which has to register the same under Rule 9. The registration of appeal would arise only when the memorandum of appeal is admitted. There are cases where the memorandum of appeal may be Eresented with certain defects, such as (1) failure to pay proper Court-fee, (2) omission to file the requisite number of copies of the lower court's judgment, (3) omission to file a certified copy of the decree of the lower Court, (4) failure to pay battas for the respondents etc. In such cases, there is certainly presentation of the memorandum of appeal but it is defective for some reason or other. It can only be said that there is no proper presentation but it can, under no circumstances, be said that there is no presentation of the memorandum of appeal in the eye of law. The memorandum of appeal would be registered under Rule 9 when it is proper and in order, otherwise not, but still, in the appellate court, there is an appeal. It is pertinent to notice in this context the use of the expression 'when an appeal is presented' instead of 'when a memorandum of appeal is presented' in Sub-rule (3) of Rule 1 of Order 41 C. P. C. For all the reasons stated, we are of the firm opinion that an appeal presented out of time is an appeal in the eye of law for all practical purposes and it is not non est. With great respect to the learned Judge who expressed in Ramayyan v. Ashtamoorthi Namboodiri, 1962 Ker LT 500; C. M, P. No. 4920/63 dated 25-6-1963 (Andh Pra) and C. M. P. No. 5573/71 etc. dated 11-7-1972 (Andh. Pra.) of this Court, the contrary view, that an appeal preferred after the expiry of the period of limitation prescribed therefor is non est or not an appeal in the eye of law until the delay in presenting the appeal is condoned, we are unable to persuade ourselves to agree with them. We prefer to consider in detail the reasoning of the learned Judges taking the contrary view when we deal with the scope and application of the provisions of Order 41, Rule 1 (3) C. P. C.

14. This brines us to examine the contention of the respondent's counsel that the passing of any order in an interlocutory application in an appeal amounts to proceeding to deal with the appeal in some way within the meaning of Order 41, Rule 1 (3) C. P. C. The expression 'the Court shall not proceed to deal with the appeal in any way used in Order 41, Rule I (3) must be construed as prohibiting the Court from proceeding to deal with the appeal on merits. The exceptions provided therein are (i) dismissing the appeal under Rule 11 of Order 41 and (ii) dismissing the appeal on the ground that the Court is not satisfied as to the sufficiency of the reasons for condoning the delay in preferring the appeal. The prohibition imposed on the Court by the Sub-rule (3) of Rule 1 of Order 41 from proceeding to deal with the appeal is also not absolute. It can be dealt with after a notice has been given to the respondents and his objections if any to the Court in the application for condonation of delay have been considered. The words 'in any way' would only govern the two exceptions indicated therein. In other words, the Court proceed to deal with the appeal in any way except in the two contingencies indicated therein. That apart, the two excep-tions contemplate the disposal of the very appeal itself. In either of the cases, there would be nothing further in the appeal to be dealt with. In the former case, the appeal is straightway dismissed while in the latter case, the dismissal of the application to condone the delay in the presentation of the appeal would consequently make the appeal ineffective and incompetent. Dealing with the appeal in the context must be construed to be dealing with the appeal on merits and not in any other way. When the Court deals with the appeal on merits, the very appeal would be disposed of one way or the other and there would be nothing pending in the appellate Court in such an event.

15. Order 41, Rule 5 C. P. C. gives jurisdiction to the appellate Court to grant stay of execution of the decree of the lower Court, which is sought to be revised, only when the appeal is still pending and not after the disposal of the appeal. If the submission of the respondent that the passing of an order in an interlocutory application is tantamount to dealing with the appeal in any way within the meaning of Sub-rule (3) to Rule 1 of Order 41 is accepted, we would be doing violence to the very language the rule and also its intendment. We are of the opinion that the Court can certainly proceed to deal with any interlocutory application the result of which does not affect the merits of the appeal which is pending without however disposing of the appeal. In such a case, the appeal would be pending before the appellate Court though such interlocutory application is disposed of. The expression 'shall not proceed to deal with the appeal in any way' should not be construed as an absolute bar on the Court prohibiting it from proceeding to consider any interlocutory application such as one for stay, or directions or appointment of a receiver, which is independent of the appeal proceeding. Such interpretation would be in accord with the intendment of Order 41. We may add that in the other parts of the country except the areas within the jurisdiction of the High Courts of Madras, Kerala and Andhra Pradesh, an appeal presented beyond the period of limitation also is governed by the procedure prescribed in Order 41 just like any other defective memorandum of appeal. Admittedly there is no provision applicable to the other parts of the country which is similar to Sub-rule (3, to rule 1 of Order 41 specifically providing for the procedure in dealing with memoranda of appeal preferred after the expiry of the period of limitation prescribed therefor.

16. We shall DOW proceed to consider whether the passing of an order in an application for stay of execution of the decree pending the disposal of an unnumbered, incompetent or Irregular appeal or an appeal presented after the expiry of the period of limitation prescribed therefor would amount to dealing with the appeal in any way. In our considered opinion it does not. An application for stay of execution of the decree appealed against is an independent interlocutory application pending disposal of the appeal be it regular, irregular or incompetent. The grant of or refusal to grant stay of execution of the decree has nothing to do with the appeal. Where stay is granted, execution proceedings will not go on until further orders. In a converse case, i.e., where stay has been refused, the execution proceedings in the trial Court would go on in accordance with law. But in either case, the appeal would be on the file of the appellate Court and it has to be disposed of in accordance with law and procedure. It is the duty of the appellate Court to proceed to deal with the appeal on merits as and when it comes up for final hearing and dispose of the same. The grant of or refusal to grant stay as well as the reasons recorded therein are neither material nor germane for determining the rights of the parties in the appeal. The result of the application for stay has no direct or indirect impact on the merits of the appeal. It cannot be said that the appeal has to be allowed because stay of execution has been granted pending the appeal or vice versa. In other words, the result of the application for stay would not in any way affect the rights of the parties and tie questions to be determined in the appeal. The determination of the rights of the parties in the appeal would ultimately govern the rights of the parties irrespective of the result of the application for stay. The grant of, or refusal to grant stay in a case does not depend upon the determination of the rights or the parries in appeal. That apart, the order passed in the application for stay would be operative only till the disposal of the appeal. The stay muted in an application pending the appeal would automatically merge with the final decree passed in the appeal where the rights of the parries are adjudicated upon unless the terms of tht order of stay are incorporated in the appeal, judgment and decree. In the circumstances an application under Rule 5 of Order 41, C. P. C. cannot be held to be directly connected with the merits of the appeal. It is Rule 5 but not Rule 1 (3) of Older 41 that prescribes the procedure for filing an application for stay pending an appeal. The power vested in the appellate Court under Order 41, Rule 5 is distinct and independent of its power to deal with the appeal on merits. The procedure for the hearing of appeals and their disposal has been indicated in Rules 16 to 29 and 30 to 34. The appellate court has power either to remand the case or dismiss or allow the appeal, as the case may be. It is empowered to take additional evidence, frame issues and refer them to trial in appropriate cases and ultimately pronounce judgment and prepare a decree as contemplated by Rules 30 to 37 of Order 41.

17. For the reasons indicated above, we have no hesitation to hold that the passing of an order by an appellate Court in an application for stay of execution of the decree or any other interlocutory application pending an appeal be it a regular or irregular, registered or unnumbered, or competent or incompetent appeal or an appeal preferred after the expiry of the period of limitation--does not amount to the Court proceeding to deal with the appeal in any way within the meaning of Order 41, Rule I (3), C. P. C.

18. We shall now turn to the decisions relied upon by the respondent. In 1962 Ker LT 500, Raghavan J., (as he then was) held that there is no appeal in the eye of law until the delay in presenting the same is condoned and the appeal admitted and that an order nassed in an interlocutory application is tantamount to dealing with the appeal in some way within the meaning of Order 41, Rule 1 (3) C. P. C. and, therefore, the Court has no jurisdiction to pass an order in the application for stay or in any interlocutory application until the appeal is admitted. The respondent next relied upon an unreported order of Venkate-sam T. in C. M. P. No. 4920 of 1963 dated 25-6-1963 (Andh. Pra.). He was of the opinion that in view of the language of Section 3 of the Limitation Act. an appeal which is not registered and admitted as it was filed beyond the period of limitation 'should be deemed to be non est till the application under Section 5 is ordered' and that 'the Court cannot grant stay till the other application is ordered.' This order was set aside by a Division Bench in L, P. A. No. 54 of 1963 though no reasons were recorded. Hence in the eye of law, there is no subsisting order of Venkatesam, J. as it was superseded by the appellate order which set it aside. The other decision which requires consideration is that of our learned brother A. V. Krishna Rao, J. in C. M. P. Nos. 5573 of 1971, 5292 and 5293 of 1972 in A. S. (S. R. No. 1251 of 1971) dated 11-7-1972 (Andh. Pra.). The learned Judge was of the view that an appeal which is not preferred within the time prescribed therefor is non est and the words 'the Court shall not proceed to deal with the appeal in any way otherwise than....' in Order 41, Rule 1 (3) C. P. C. 'are mandatory' and do not admit of any exceptions except the exceptions mentioned therein' and 'to construe it in any other way would be doing violence to the language of the rule and also its intendment.' The decision of a Division Bench of the Calcutta High Court in Bibabati v. Ramendra Narayan, (1937) 41 Cal WN 374 where in an application for stay under Order 41, Rule 5 C. P. C. before the admission of the appeal was held to be competent was distinguished on the grounds that it was a case where an appeal was presented in time and that there was no provision corresponding to Order 41, Rule 1 (3) applicable to the area within the jurisdiction of the Calcutta High Court. The learned Judge relied upon the decision of the Kerala High Court in 1962 Ker LT 500 (cited supra) in support of his view. We are unable to persuade to agree with the view expressed by our learned brother A. V. Krishna Rao J. and Raghavan, J. of the Kerala High Court and we dissent from their view, for the reasons assigned by us earlier.

19. We may add that the procedure provided by the Code of Civil Procedure is only a means to decide the disputes in suits and appeals but not an end in itself. If the contention of the respondent is accepted, it would result in grave injustice to the appellants who, for some reason or other, could not present appeals in time. We may illustrate by a concrete example. In an appeal preferred after the period of limitation prescribed therefor, where there are a number of respondents, it would be very difficult, though not practically impossible, to have the notice served on them in the application to condone the delay in presenting the appeal within a reasonable time. Unless and until the dealy in presenting the appeal is condoned; the appeal will not be numbered as it cannot be admitted or registered. Consequently, the application for stay of execution of the decree appealed against cannot be dealt with by the appellate Court. In such circumstances, there is every possibility of the decree being executed in the trial Court by the decree-holder and the appellant, even if he succeeds in the appeal, may not have adequate relief to safeguard some of his interests. This type of anomalies and injustice can be prevented by putting a reasonable construction on the language of the provisions of Order 41 C. P. C. The Courts, in such circumstances, have to construe the provisions of the Civil Procedure Code in such a way as to advance real and substantial justice to the parties to them. Where two plausible interpretations or views are possible, the one which is consistent with the advancement of real and substantial justice to the parties must be accepted by Courts. For all the reasons stated, we hold that the appellate Court is quite competent to dispose of an application for stay of execution of the decree appealed against, pending an unnumbered, incompetent or irregular appeal or pending the condonation of delay in filing the appeal preferred after the expiry of the period of limitation prescribed therefor, overruling the earlier decision of a single Judge of this Court.

20. In the result, we allow the appeal but without costs and set aside the order of the single Judge made in C. M. P. S. R. No. 80778 of 1973 dated 18-12-1973. We further direct the office to number the aforesaid C. M. P. and post the same before admission court after Summer Vacation. There shall be stay pending further orders on the stay petition.


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