S. MADHUSUDAN RAO, J.

( 1 ) THIS is a petition by the plaintiff in Original Suit No 108 of 1976 on the file of the Sub-Court, Guntur to vacate the interim stay ordered by this Court in Civil Miscellaneous Petition No. 5962 of 1980. The suit was for the recovery of possession of the plaint c schedule properties and for past and future mesne profits. The unsuccessful defendant in the suit filed an appeal before this Court (SR No. 33262 of 1980) against the judgment and decree passed by the Sub Court, Guntur, along with the application tor permission to file the appeal as an indigent person. He has also filed another application, C. M P. No 5881 of 1980 for the condonation of the delay of 16 days in filing the appeal. He has further filed the C. M. P. No. 5962 of 1980 under Order 41 Rule 5 C P. C. praying that the High Court may be pleased to stay all further proceedings in the execution of the decree in O. S. No. 108 of 1976 on the file of the Sub-Court, Guntur. On 24-4-1980 this court directed notice on the application for condonation of the delay and passed an interim order of stay on the application for stay The petitioner, who is the respondent in the appeal and the applications filed by the defendant has come up with this application for vacating the interim order of stay urging that be bad already taken possession of the properties in question and that the interim stay order became infiuctuous.

( 2 ) WHEN the matter came up for hearing it has been brought to the notice of the Court by Sri G. Narayana Rao, the learned counsel for the plaintiff, that the property was delivered to the plaintiff in May. 1980 in so far as the interim order of stay passed by this Court in the last week of april, 1980 was not received by the Executing Court before the delivery was effected. Sri P L. N. Sarma, the learned counsel for the defendant, contended that no delivery was actually effected and even if any delivery was actually effected subsequent to the passing of the stay order by the High Court such illegal delivery is a nullity in the eye of law and that therefore, the interim stay order passed by this Court in April, 1980 has not become infructuous. It is further contended by the plaintiff s learned counsel that in the circumstances of the case the interim order passed by this. Court has to be vacated in so far as it is contrary to the express provision contained in Order 41 Rule 3-A of the Code of Civil Procedure.

( 3 ) ORDER 41 Rule 3-A as inserted by Act 104 of 1976 and which came into force with effect from 1-2-1977, reads as follows :"3-A. (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 subrule (1), the Court shall not make an order for the stay of exccution 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. "

( 4 ) ORDER 41 rule 3-A (3) expressly prohibits the Court from making an order for the stay of the execution of the decree unless the Court decides to hear the appeal after hearing the appearl under Order 41 Rule 11 of the code of Civil Procedure. In the face of the mandatory prohibition under order 41 Rule 3-A (3), the interim stay order passed by this Court on 24-4-1980 is illegal and the same cannot be made absolute. It has to be vacated.

( 5 ) IN the view I have taken above, I do not think it necessary to consider whether the

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