Point of Law: Condonation of Delay – Second Appeal - when an appeal is barred by limitation and an application is made under Section 5 of the Limitation Act for condonation of the delay along with the memorandum of appeal, until the application under Section 5 is allowed the appeal cannot be filed or admitted at all

JUDGMENT :

This Court vide Order dated 09.12.2020 observed that as no one appeared for the respondents despite service of notice, Court would proceed with the matter without waiting for the appearance of the respondents on the next Court date. Thereafter, the matter was listed again on 28.01.2021 on which date, a last chance was again given to the respondents to make their appearance in the matter and it was directed that the matter be listed again on 04.02.2021. That is how the matter is listed today.

2. Mr. Lalrokunga Pautu, learned counsel submits that he has been instructed by his senior, Mr. J.C. Lalnunsanga that they will be representing all the respondents and prays that he be given some time to file their power to appear for the respondents. However, considering the nature of the grievance and the issue involved, this Court is of the considered view that the matter can be proceeded with and that no prejudice would be caused to the respondents even if the matter is taken up for disposal.

3. Heard Mr. Jonathan L. Sailo, learned counsel for the petitioner, who submits that the petitioner by filing this Civil Revision Petition under Article 227 of the Constitution of India r/w Section 151 of the Code of Civil Procedure (CPC) prays for setting aside the impugned Order dated 26.08.2019 passed by the learned Addl. District & Sessions Judge, Aizawl in RFA No. 12/2019 arising out of Eviction Suit No. 2/2001. He also prays for setting aside the subsequent orders passed by the learned Court below after the filing of the instant Revision Petition as was brought on record vide affidavit filed on 22.07.2020 as permitted by this Court vide Order dated 04.06.2020.

4. The case of the petitioner briefly is that he had filed Eviction Suit No. 2/2001 seeking eviction of the defendants arrayed therein and who are the present respondents in this Civil Revision Petition. The Eviction Suit No. 2/2001 was disposed of in favour of the plaintiff by the Subordinate District Council Court (SDCC), Aizawl vide its Order dated 05.11.2011. The said Order is now challenged by the present respondents by filing RFA No. 12/2019 before the learned Additional District Judge, Aizawl.

5. Be it stated herein that in the Eviction Suit, there were only 17 defendants but in the RFA filed before the Court below, besides the original defendant Nos. 1 to 17 in the Eviction Suit, the respondent Nos. 18 to 32 in the instant revision petition were added as appellants.

6. The grievance of the petitioner is that the Court below vide Order dated 26.08.2019 passed in RFA No. 12/2019 stayed the Judgment & Decree passed by the SDCC, Aizawl in Eviction Suit No. 2/2001 dated 05.01.2011 and also the proceedings of Execution Case No. 31/2012 until further orders or till disposal of the appeal before the delay in filing the said appeal was first considered.

7. Mr. Jonathan L. Sailo, learned counsel submits that the respondents in fact has filed CMA No. 374/2019 under Section 5 of the Limitation Act, seeking condonation of delay of 3120 days in filing RFA No. 12/2019. Although the Court below issued notice to the Opposite Party in CMA No. 374/2019 on 26.08.2019 but at the same time, issued the impugned stay order in RFA No. 12/2019.

8. The learned counsel submits that Order 41 Rule 3 A of the CPC provides that when the appeal is presented after the expiry of the period of limitation, the Court shall not make an order for the stay of execution of the decree against which the appeal is preferred until and unless the application is decided in favour of the applicant/appellant. It is only then that the Court will proceed with the appeal and hear the parties on merits. In support of his submission, the learned counsel relies upon the following authorities:-

(i). Mamuda Khateen and Others Vs. Beniyan Bibi and Others reported in AIR 1976 Calcutta 415 Full Bench.

(ii). Chhitu Vs. Mathuralal and Others reported in AIR 1981 Madhya Pradesh 13 and

(iii). State of M.P. and Another Vs. Pradeep Kumar and A