The Court held that a stay application in execution proceedings cannot be granted prior to condoning significant delay in the underlying appeal, emphasizing the necessity of following procedural requirements.

JUDGMENT :

(DEVASHIS BARUAH, J.)

Heard Mr. SP Roy, the learned counsel appearing on behalf of the petitioner.

2. This is an application under Section 115 of the Code of Civil Procedure, 1908 (for short, the Code), read with Section 151 of the Code challenging the order dated 02.04.2025 passed by the Court of the learned Additional District Judge No.1, Kamrup(M) at Guwahati (for short, ‘the learned Appellate Court’), whereby the application filed under Section 151 for grant of a stay to the execution proceedings being Title Execution Case No.4/2023 pending before the Court of the learned Civil Judge No.3, Kamrup(M) at Guwahati was rejected.

3. This Court prior to dictating the instant order enquired with the learned counsel appearing on behalf of the petitioner as to whether he would like to convert the instant application to a proceedings under Article 227 of the Constitution. The learned counsel submitted that by the instant proceedings the revisional jurisdiction of this Court under Section 115 of the Code has been invoked on the ground that the learned Court failed to exercise the jurisdiction and if the application under Section 151 of the Code would have been allowed, it would amount to the disposal of the said application.

4. In the opinion of this Court, the present application is hit by the proviso to Section 115 of the Code inasmuch as, the application under Section 151 of the Code if allowed would not have resulted in disposal of any proceedings except granting a stay to the Execution Proceedings. Be that as it may, as an important issue is involved, this Court would deal with the merits of the challenge.

5. It is seen from the materials on record that the petitioner herein had filed an appeal against the orders dated 05.04.2016 passed in Misc.(J).Case No.288/2013 and Misc.(J).Case No.289/2013 arising out of Title Suit No.102/2012 whereby the application filed for setting aside the ex-parte decree passed in Title Suit No.102/2012 was dismissed. In other words, the Appeal is filed under Order XLIII Rule 1(d) read with Section 104 of the Code.

6. The petitioner along with the said appeal had filed an application for condonation of delay of 3240 days. The delay is yet to be condoned and it is under such circumstances, the petitioner had filed an application under Section 151 of the Code in the Appeal for grant of the stay of the execution proceedings being Title Execution Case No.4/2023. The learned First Appellate Court had rejected the said application and it is under such circumstances, the present revision application is filed.

7. The question which primarily arises is as to whether in absence of the delay being condoned, the learned Appellate Court would be in a position to stay the execution proceedings and secondly, if so whether the learned Appellate Court was justified in rejecting the said application.

8. Order XLI Rule 3A of the Code provides that when an appeal is presented after the expiry of the period specified, it shall be accompanied by an application supported by an affidavit setting forth the facts on which the Appellant relies to satisfy the Court that the Appellant had sufficient cause for not preferring the Appeal within such period. It is relevant to take note of that the limitation for filing an appeal against the decree or an order permitted by the Code has to be traced to the LIMITATION ACT , 1963 (for short, ‘the Act of 1963’). In this regard, it is pertinent to take note of Article 116 of the Schedule to the Act of 1963 which provides that the period specified to file an Appeal to the High Court is 90 days from the date of the decree or order and 30 days