Whether appellate court has power to stay execution if the application for condonation of delay has been decided within sixty days?

image description

The High Court of Bombay headed by Justice Nutan D. Sardessai in Luis Antonio Romualdo Jesus de Maria Jose De Abreu Vs. Linda D'Souza e Fernandes and Ors. 1987 (2) BomCR 153 observed on whether the use of the word 'shall' in Order XLI, Rule 3-A(3) CPC indicates Legislative imperative. The Division Bench was seized of the construction of the word 'shall' as mandatory or imperative consistent with the object of the Legislature to expedite disposal of the cases of condonation of delay and to ensure that such applications subserve the remedy of appeal itself? The provision of 60 days for the transformation of the 'proposed' appeal [R. A(3)] into an 'appeal' (Rule 11) the situations like those set out in paragraphs 19 and 20 are consistent with the permissive nature of the word 'shall'. The object of the enactment is merely to provide a regulatory procedure to prevent appeals being admitted without considering the question of condonation of delay. The permissive or directory use of the word 'shall' fully conforms to this Legislative intent. If construed as mandatory, the appeal may become infructuous, thereby destroying the regulatory content of Rule 3-A for, then there is nothing left to regulate. In their opinions, therefore, the word 'shall' in Rule 3-A has not been used to denote the imperative. It is permissive while the application for the condonation of delay is pending during the 60 days provided by the statute.

The Court further observed that the creation of the right to appeal, and the Court's duty to consider condonation of delay in preferring the appeal, on the one hand and the prohibition against grant of stay of execution of decrees on the other create a situation which has to be resolved on the basis of accepted rules of construction. The Court has elaborated the reasons in the paragraphs 13 to 22 which describes as;

 The discrepancy can be resolved by equitable construction of Rule 3-A of Order XLI, of Code of Civil Procedure. Order XLI, Rule 3-A was enacted not for the purpose of prohibiting the stay of execution of decrees pending consideration of the applications for the condonation of delay but for ensuring that the courts do not admit appeals without consideration of the application for the condonation of delay and to provide a procedure to regulate the practice of Courts in this matter. This being the dominant purpose of the legislation, it is adequately fulfilled by the construction which we have laid down. The construction which we have proposed is consistent with legislative intent that during 60 days that may be taken for the hearing of the appeal under Rule 11, the appeals should be kept alive. In our opinion, Legislation did not intend that the right of appeal should be frustrated by refusal to stay the execution of decrees during the interregnum between proceeding under Order XLI, Rule 3-A and Order XLI, Rule 11. The intent was to enable the courts to stay the execution of decrees during this short period. The word 'shall' employed in Order XLI, Rule 3-A(3) is permissive and not mandatory. There is a thin dividing line whereby this judgment would not support the case of the respondent inasmuch as unlike what is contemplated in Rule 11A, the application for the condonation of delay was not decided within 60 days period as to keep the appeal alive and to grant the stay of the execution of the decree under execution. In that view of the matter there is force in the contention of Shri D'Souza, learned Advocate that the learned District Judge-1 could not have granted the stay of the judgment and order dated 21/08/2008 only on the specious premise that the purpose of filing the appeal would be defeated if stay was not granted. The appeal at the instance of the respondents was the proposed appeal pending the condonation of delay of more than 9 years and besides the said application for the condonation of delay was not decided within 60 days.

The bench observed on “Whether appellate court has power to stay execution if the application for condonation of delay has been decided within sixty days?” that the learned District judge could not have passed the order as it did in a perfunctory manner and thereby caused prejudice to the petitioner.