The High Court has the inherent power to grant a stay of an order pending an application for condonation of delay under Section 5 of the Limitation Act, even if the appeal is non est until the application for condonation of delay is allowed.

( 1 ) ON the 20th of Jan. , 1983, on an application filed by Durgaprosad Jhunjhunwalla and Ors. , under Section 5 of the Limitation Act for condonation of delay in preferring an appeal against the order for temporary injunction passed by the learned Judge of the City Civil Court in T. S. No. 2301/1982 (Shyam Sundar Jhunjhunwalla and Ors. v. Durgaprosad Jhunjhunwalla and Ors.) and on another application filed on the same day for delay of operation of the aforesaid order of temporary injunction, being Order No. 4 dated 7-12-82, a Rule was issued and an interim order was passed by this Court staying operation of the order dated 7-12-82 passed by the learned Judge, 11th Bench of the City Civil Court and all proceedings relating thereto. The order was as follows:--"there will be an interim order staying operation of the order dated December 7, 1982 passed by the Judge, 11th Bench, City Civil Court at Calcutta in T. S. No. 2301/82 and all proceeding relating thereto till the 14th of February, 1983 with liberty to the petitioners to have the same extended upon prior notice to the Respondents. "

( 2 ) IN the order that was passed on the 7th of December, 1982 an interim injunction was granted in terms of prayers (a) and (b) of the application filed by the opposite parties in this Rule (Plaintiffs in the suit before the City Civil Court) and the said learned Judge passed orders by issuance of a temporary injunction restraining the defendants Nos. 1 and 2 (petitioners herein) from taking part in the management of the Society or from managing, alienating, selling or encumbering or in way dealing with the assets, properties and/ or moneys belonging to the Society and/ or from removing, destroying, taking away or keeping in their custody an account book, register, deeds, documents, papers concerning or relating to the said Society until the disposal of the suit.

( 3 ) THE learned Judge of the City Civil Court further ordered that the defendants would be called upon to show cause why the ad interim order should not be made absolute and fixed the date on the 5th of Jan, 1983 for further orders.

( 4 ) THE appellants-petitioners now pray for extending the order for stay passed by this Court on the 20th of Jan. 1983.

( 5 ) MR. Dipankar Gupta, appearing on behalf of the petitioners, submitted for extending the order for stay passed by this Court and argued that refusal to grant the stay would render the entire application infructuous. Mr. Gupta argued that when an application under Section 5 of the Limitation Act is pending, the Court is in seisin of the matter and as such, if the Court considers it expedient it can grant the stay for the ends of justice.

( 6 ) MR. A. P. Chatterjee, on behalf of the opposite parties, argued that as no order has been passed on the application for condonation of delay, the appeal is non est and no order can be passed on the application made for stay of the order appealed against. Mr. Chatterjee contended that until the application for condonation of delay is disposed of in favour of the applicants, no order can be passed on the present application as in the eye of law no appeal is there. Mr. Chatterjee referred to a decision of a Full Bench of this Court in the case of Mamuda Khateen v. Beniyan Bibi. In the said decision it has been observed (at page 416) :--"it seems to us that when an appeal is barred by limitation and an application is made under Section 5 of the Limitation Act for condonation of delay along with the Memorandum of Appeal, until the application under Section 5 is allowed, the appeal cannot be filed or admitted at all In other words, till a favourable order is made on the application under Section 5 the appeal is non est. "

( 7 ) MR. Chatterjee strongly relies on this passage and contends that as the delay has not yet been condoned, no order can be passed by this Court on the application for stay, in an appeal which does not exist. He also relies upon the provisions of Order