Calcutta High Court (Appellete Side)
Hem Chand Loonkar vs Kali Prasad Shaw & Ors on 12 June, 2018
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
1
S/L 2
12.06.2018
Ct. No. 6
SD S.A.T. 6 of 2018
With
CAN 759 of 2018
Hem Chand Loonkar.
Vs.
Kali Prasad Shaw & Ors.
Mr. Kushal Chatterjee
Mr. Surendra Kumar Sharma ... for the petitioner/appellant.
C.A.N. 759 of 2018:-
Leave is granted to the petitioner to correct the prayer of application.
This is an application filed by the appellant praying for condonation of delay in
filing the Memorandum of Appeal filed against the judgment and decree dated September
16, 2017 passed by the learned Civil Judge, 10th Bench, City Civil Court, Calcutta in Title
Appeal No.18 of 2016 thereby affirming the judgment and decree dated April 11, 2016 and
June 29, 2016 respectively passed by the learned Judge, 3rd Bench, Presidency Small
Causes Court at Calcutta in Ejectment Suit No.629 of 2000.
According to the Stamp Reporter's report, the appeal is filed out of time and
delayed by 25 days. The petitioner has taken out this application explaining the delay for
a period of 25 days. This application is taken up by this Court for the first time. As a result
whereof, the petitioner had no occasion to obtain leave to serve copy of this application
upon the plaintiffs/respondents/opposite parties.
It is submitted that although there is no difficulty to serve a copy of the application upon the opposite parties, but tomorrow is the date fixed in the learned Court below in respect of the Ejectment Execution Case No.83 of 2017 pending before the Court of learned 3rd Bench, Presidency Small Causes Court at Calcutta. The petitioner seeks that if an order of police help is passed in the said execution case and the possession is obtained by the decree-holder, the entire effort in filing the second appeal will become infrustuous.
Although, it is a settled law that till Section 5 application is allowed, there is no appeal before this Court. Yet in such a situation, where there is a possibility that the appeal might be infrustuous in the absence of opposite parties, even a short order directing the stay of execution, the Court in exercise of its discretion can protect the interest of the parties in a similar situation. This Court had done so in the case of Ram Ch. Sinha -vs- Smt. Protiva Dutta reported in 1978 (2) (Cal) CLJ 462. 2 In the said decision, this Court held that "Now, the question is whether the ad- interim order of stay should be continued till the admission of the second appeal. The learned Advocate appearing for the opposite party submits that under the amended Code of Civil Procedure by virtue of order 41 rule 3A. I have no power to grant stay of execution of the decree so long as the matter is not heard out under order 41 rule 11 of the Code of Civil Procedure and as there is an express prohibition in the Code itself, rule 3A of Order 41. It is true that reading the provisions of order 41 rule 3A of the Code of Civil Procedure the procedure to be adopted is that stay of execution of the decree against which the appeal is filed should not be granted until the appeal itself is admitted under order 41 rule 11 of the Code of Civil Procedure. Would this provision of the Code limit my powers u/s. 151 of the Code of Civil Procedure to grant ad-interim stay if the facts and circumstances of a particular case necessitate for ends of justice?"
In inserting the above proposition, the Court further held that "Therefore, where there is no provision or remedy provided in the Code itself to do justice, the inherent power can be exercised. In this case it is true that there is prohibition under order 41 rule 3A C.P.C. but then that prohibition, cannot be construed as an absolute prohibition, because cases may arise where it will be doing injustice to deny the stay of the execution of the decree appealed against."
In the instant case, I find that the delay is only 25 days and it appears that such delay has been properly explained and there is every possibility that the delay might be condoned after hearing the parties. However, without hearing the decree-holder, the application under Section 5 cannot be disposed of.
In that view of the matter, I propose to pass an interim order to the extent that the Ejectment Execution Case No.83 of 2017 shall remain stayed for a period of four weeks from date.
The petitioner is directed to serve a copy of this application being C.A.N. 759 of 2018 upon the opposite parties within a week under registered cover with acknowledgment due and to file affidavit of service on the next date of hearing.
Let the matter be listed three weeks hence.
(Sahidullah Munshi, J.)