The provisions of Order 41 Rule 3A CPC are directory in nature and not mandatory, and therefore, the delay in filing an appeal can be condoned even after the filing of the appeal.

1. - An application has been filed under Section 151 CPC. for recalling the order passed by this court on 13.8.1998. It is contended that in view of Order 41 Rule 3A CPC the delay under Section 5 of the Limitation Act could not have been condoned and ex-parte interim order could not have been passed.

2. On 13.8.1998 while condoning the delay under Section 5 the Limitation Act, I directed the parties to maintain status quo existed on that date.

3. Before proceeding further it would be apposite to take the stock of to Order 41 Rule 3-A, which provides thus :

"Rule 3A-Application for condonation of delay-(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 sub-rule (1), the Court shall not make an order for the stay of execution 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. The aforesaid provision was inserted by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976) Section 87(1) (1.2.1977). It was thought that the court should not be empowered to grant an interim stay of execution of the decree unless the court has, after hearing under rule 11 of Order 41 decided to hear the appeal. Sub-rule (3) in the proposed rule 3-A of Order 41 has been inserted accordingly.

5. Learned counsel appearing for the respondent in support of the application placed reliance on Chhelaram v. Manak (1997(2) WLC (Raj.) page 85 .

6. On the other hand, the learned counsel appearing for the appellant contended that the provisions contained under Order 41 Rule 3-A are directory in nature. In support of this contention, reliance was placed on Full Bench judgment of this Court in Dilip Bhai Gajrota and others v. Contractor Lime Gotan 1996(1) WLC (Raj.) page 1 .

7. In Dilip Bhai Gajrota's case (supra), it was held as under :

"22. On a careful consideration of all these decisions and the provisions of law, we are of the view that O. 41 R. 3-A was inserted by an amendment and the sole object of the amendment was, as observed by the Hon'ble Chief Justice in AIR 1987 Guj. 205, to put an end to the practice of admitting an appeal subject to the decision on the question of limitation. That being the sole object to hold that the provisions are mandatory though procedural In nature, would be to permit injustice being caused for compliance of a procedural requirement. An appeal, as observed above, is a proceeding to bring to a higher court a decision for redressal of grievance against that decision. Such being the intention of making an appeal available, the entire purpose of making it available will be frustrated if it is required to be dismissed for non-compliance of the provisions of O. 41 R. 3-A of the Civil Procedure Code or Rules 132 and 134 of the Rajasthan High Court Rules. We are fortified in this view we are taking by several decisions of the High Courts noted above. We, therefore, answer the questions referred to us as under-

(1) An appeal which is apparently barred by limitation and be filed without an application under Section 5 of the Limitation Act, 1963 and the provisions of Rules 132 and 134 requiring filing of such application are directory in nature.

(2) The provisions of Order 41 Rule 3.A of the Code of CM Procedure are not mandatory and, therefore filing of an application under section 5 of the Limitation Act, 1963 for condonation of del