Gauhati High Court
Page No.# 1/8 vs Sahara Khatun And 4 Ors on 26 March, 2026
Page No.# 1/8
GAHC010047542025
2026:GAU-AS:4375
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/88/2025
KADBHANU NESSA AND 3 ORS.
W/O LATE BABU KHA, R/O VILL- GALIA, MOUZA- BHAWANIPUR, DIST-
BAJALI, ASSAM, PIN-781352
2: MD DILDAR KHA
S/O LATE BABU KHA
R/O VILL- GALIA
MOUZA- BHAWANIPUR
DIST- BAJALI
ASSAM
PIN-781352
3: MD SANJIBUL KHA
S/O LATE BABU KHA
R/O VILL- GALIA
MOUZA- BHAWANIPUR
DIST- BAJALI
ASSAM
PIN-781352
4: SHAKIBUL KHA
S/O LATE BABU KHA
R/O VILL- GALIA
MOUZA- BHAWANIPUR
DIST- BAJALI
ASSAM
PIN-78135
VERSUS
SAHARA KHATUN AND 4 ORS.
W/O LATE FERDUS KHAN, R/O VILL- GALIA, MOUZA- BHAWANIPUR, DIST-
BAJALI, ASSAM, PIN-781352
Page No.# 2/8
2:MD FAZAL KHAN
S/O LATE FERDUS KHAN
R/O VILL- GALIA
MOUZA- BHAWANIPUR
DIST- BAJALI
ASSAM
PIN-781352
3:HELMINA KHATUN
W/O MD. FAZAL KHAN
R/O VILL- GALIA
MOUZA- BHAWANIPUR
DIST- BAJALI
ASSAM
PIN-781352
4:MD BAIRAM KHAN
S/O LATE ABJAL KHAN
R/O VILL- GALIA
MOUZA- BHAWANIPUR
DIST- BAJALI
ASSAM
PIN-781352
5:MUSSTT JAYADA KHATUN
W/O LATE ABJAL KHAN
R/O VILL- GALIA
MOUZA- BHAWANIPUR
DIST- BAJALI
ASSAM
PIN-78135
Advocate for the Petitioner : MR. A R SIKDAR, MS M SARMA,MR. S I TALUKDAR
Advocate for the Respondent : MS. R CHOUDHURY (R-1 TO 3), MR. Z. HUSSAIN (R-1 TO 3),MS
F N ZAMAN (R-1 TO 3) BEFORE HON'BLE MR. JUSTICE KAUSHIK GOSWAMI Advocates for the petitioners : Mr. A.R. Sikdar, Advocate Advocates for the respondent Nos.1-3 : Ms. R. Choudhury, Advocate Page No.# 3/8 Date of hearing : 26.03.2026 Date of Judgment : 26.03.2026 JUDGMENT & ORDER(ORAL) Heard Mr. A.R. Sikdar, learned counsel appearing for the petitioners. Also heard Ms. R. Choudhury, learned counsel appearing for the respondents.
2. By way of the present petition under Article 227 of the Constitution of India, the petitioners have challenged the order dated 09.01.2025 passed by the learned First Appellate Court in Misc.(J) Case No. 03/2025, whereby the said Court allowed the interlocutory application and stayed the proceedings of Title Execution Case No. 02/2024.
3. The brief facts, as discernible from the records, are that the petitioners, as plaintiffs, instituted T.S. No. 07/2011 seeking declaration of right, title and interest over the suit land, recovery of khas possession by evicting the defendants therefrom, and for consequential reliefs including removal of constructions and declaration of Sale Deed No. 369/06 dated 24.05.2006 as null and void. The learned Trial Court, by judgment and decree dated 04.05.2023, decreed the suit in favour of the plaintiffs. Pursuant thereto, Title Execution Case No. 02/2024 was initiated.
4. During the pendency of the execution proceedings, the respondents filed Misc.(J) Case No. 03/2025 under Order XLI Rule 5 read with Section 151 of the CPC seeking stay of the execution proceedings.
5. Aggrieved by the judgment and decree, the respondents preferred a first appeal being T.A. Case No. 01/2025 along with an application under Section 5 of Page No.# 4/8 the Limitation Act for condonation of delay of 216 days. Simultaneously, they filed the aforementioned application for stay of execution. Notably, without first adjudicating upon the application for condonation of delay, the learned First Appellate Court proceeded to allow the stay application and stayed the execution proceedings.
6. Being aggrieved by such stay of execution, the present petition has been preferred.
7. Learned counsel for the petitioners submits that the impugned order has been passed in a wholly mechanical manner, without recording any reasons or satisfaction as mandated under Order XLI Rule 5(3) of the CPC. It is contended that the grant of stay, without considering the delay application and without recording findings on the statutory prerequisites, renders the order legally unsustainable.
8. Per contra, learned counsel for the respondents submits that the Appellate Court was justified in granting stay in view of the exceptional circumstances of the case and reliance is placed on Ramesh Chandra Kalita vs. Mira Patowari and Ors., reported in 1997 (1) GLT 511.
9. I have considered the submissions advanced by the learned counsel for the parties and have perused the materials available on record.
10. Order XLI Rule 3A of the CPC governs the procedure where an appeal is filed beyond the prescribed period of limitation. Sub-rule (3) thereof provides that where such an appeal is accompanied by an application for condonation of delay, the Court shall not ordinarily grant stay of execution of the decree unless, upon consideration under Rule 11, it decides to entertain the appeal.
11. The provision reads as under:
Page No.# 5/8 "3A. Application for condonation of delay.-(1) When an appeal is presented after the expiry of the period of limitation specified therefor, 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."
12. The scheme of the provision indicates that entertainment of the appeal upon consideration of delay is a foundational step, and the grant of stay is consequential thereto. Thus, the requirement of considering the delay application assumes significance in the orderly exercise of appellate jurisdiction.
13. In the present case, it is not in dispute that the appeal was filed with a delay of 216 days and the application for condonation of delay had not been adjudicated. Despite the same, the learned First Appellate Court proceeded to grant stay of execution.
14. A reading of Ramesh Chandra Kalita vs. Mira Patowari and Ors. (supra), shows that the coordinate Bench had considered Order XLI Rule 3A(3) of the CPC and interpreted the same in the backdrop of the facts of that case. The Court, in the peculiar facts obtaining therein, held that in exceptional circumstances, the inherent power under Section 151 of the CPC could be invoked to grant appropriate relief in order to advance the cause of justice.
Page No.# 6/8
15. The said decision, therefore, recognizes that while the procedural requirement under Order XLI Rule 3A(3) of the CPC ordinarily governs the field, a limited departure may be permissible in rare and exceptional cases to prevent manifest injustice.
16. In the present case, however, no such exceptional circumstance has been demonstrated. The impugned order does not disclose any reason, much less compelling circumstances, justifying exercise of such inherent power.
17. Order XLI Rule 5(3) of the CPC mandates that an Appellate Court may grant stay of execution only upon being satisfied that:
(i) substantial loss may result unless stay is granted;
(ii) the application has been made without unreasonable delay; and
(iii) security has been furnished for due performance of the decree.
18. These conditions constitute essential safeguards regulating the exercise of appellate discretion and require the Court to record its satisfaction based on the materials on record.
19. A perusal of the impugned order reveals that no reasons whatsoever have been recorded demonstrating satisfaction of the aforesaid requirements.
20. The requirement of recording reasons is not an empty formality. The Hon'ble Apex Court in Lifestyle Equities C.V. & Anr. vs. Amazon Technologies Inc., reported in 2025 SCC OnLine SC 2153, has reiterated that the appellate court must record cogent and adequate reasons reflecting its satisfaction regarding the existence of "sufficient cause" before granting stay of execution.
21. The relevant paragraph of the aforesaid judgment of the Apex Court Page No.# 7/8 reads as under:
"134. We summarize our final conclusion on the grant of benefit of stay of execution of a decree by an appellate court in term of Order XLI as under:-
(III) Order XLI Rule 5(3) of the CPC provides for satisfaction regarding sufficient cause as a pre-condition for granting benefit of stay of execution of decree, and it casts an obligation upon the appellate court to record its satisfaction for stay of execution such decree.
(IV) The power of the Appellate Court to order stay of execution of the decree is circumscribed and made subject to the existence of a "sufficient cause" in favour of the appellant being shown. In order to ascertain whether a "sufficient cause" exists for the grant of stay of execution of a decree under Order XLI of the CPC, the appellate court as per sub-rule (3) of Rule 5 is required to examines-
(i) Whether there will be substantial loss to the party applying for stay;
(ii) Whether the application has been made without unreasonable delay;
and
(iii) Whether security has been given by the applicant for due performance of the decree.
(V) For the grant of stay of execution of the decree, the appellate court is required, after perusing the materials on record, to assign reasons for its satisfaction regarding the existence of a "sufficient cause". Such reasons should be cogent and adequate. The reasons assigned must indicate the necessity for the status quo prevailing on the date of the decree and/or the date of making of the application for stay, to continue by granting stay, and not merely the reasons why stay should be granted."
22. In the present case, the impugned order is completely silent on these mandatory considerations. The absence of reasons renders the order unsustainable in law.
23. Viewed thus, the impugned order, having been passed without consideration of the delay application, without disclosure of any exceptional circumstance warranting departure, and without recording satisfaction as required under Order XLI Rule 5(3) of the CPC, suffers from jurisdictional error Page No.# 8/8 and material irregularity warranting interference under Article 227 of the Constitution of India.
24. Accordingly, the order dated 09.01.2025 passed by the learned First Appellate Court in Misc.(J) Case No. 03/2025 is set aside and quashed.
25. It is, however, observed that the application for condonation of delay filed by the respondents shall be considered and decided in accordance with law. Only upon such consideration and upon the appeal being entertained, the Appellate Court may consider any application for stay of execution in accordance with law.
26. The petition stands allowed to the extent indicated above. No order as to costs.
JUDGE Comparing Assistant