The main legal point established is that an application for interim stay of execution can be granted even if an application for condoning delay is not decided, and the provisions of Rule 3-A in Order 41 of the Code of Civil Procedure are directory in nature.

Rajiv Sharma, J.

This petition is instituted against the order dated 1.8.2015 rendered by the Additional District Judge, Kangra at Dharmashala in CMA No. 42 of 2015.

2. “Key facts” necessary for the adjudication of this petition are that one Jayabanti Devi deceased instituted a suit against the respondent seeking decree for payment of arrears of pension, which was payable to her husband late Sh. Desh Raj. The suit was decreed vide judgment and decree dated 29.3.2012 passed by the learned Civil Judge (Junior Division), Indora, District Kangra, H.P. The petitioners, being legal heirs of judgment debtors instituted an Execution Petition before the trial court. Notice was issued to the judgment debtors on 24.4.2014. Respondents preferred an appeal against the judgment and decree dated 29.3.2012 before the Additional District Judge, Kangra at Dharamshala alongwith an application under section 5 of the Limitation Act for condonation of delay. Respondents have also filed an application under order 41 rule 5 of the Code of Civil Procedure seeking stay of the judgment dated 29.3.2012. Learned Additional District Judge passed the order on 1.8.2015 staying the operation of impugned judgment and decree.

3. Mr. Gaurav Gautam, learned counsel for the petitioners, has vehemently argued that since the appeal was barred by three years and the delay has not been condoned, as such, interim order could not be passed.

4. Mr. Parmod Thakur, learned Additional Advocate General, has supported the order dated 1.8.2015 passed by the learned Additional District Judge.

5. I have heard the learned counsel for the parties and have gone through the judgment and decree dated 29.3.2012 and order dated 1.8.2015 carefully.

6. It is evident from the order dated 1.8.2015 that notice was issued to the petitioners. They were ordered to be summoned for 24.8.2015 and till then the operation of impugned judgment and decree was stayed. The petitioners were granted opportunity to file reply/objection on or before the next date.

7. Division Bench of Madras High Court in Gouse Bi versus Salima Bi, AIR 1974 Madras 220 has held that even though an appeal is presented beyond the period of limitation and no order has been made on an application to condone delay there is an appeal before the court in view of order 41 rule 1 and if an application for interim stay of an execution is made, the court can grant the interim stay ex parte under order 41 rule 5 (4) even though an application for condoning delay is not decided. Division Bench has further held that order 41 rule 1 (3) does not preclude the making of such interim order. Apart from rule 5 (4), the court can pass ex parte order of stay under section 151. This judgment has been rendered by the Division Bench of the Madras High Court before the insertion of rule 3-A (1) in order 41 of the Code of Civil Procedure vide Amendment Act No. 104 of 1976. Division Bench has held as under:

“[8] In the same way, in our opinion, particularly having regard to the wording of Order XLI, Rule 1, as pointed out already there is an appeal to this court, even though it has not been presented in time and it might even turn out eventually that the application for excusing the delay is no allowed. Madhavan Nair, J., expressed the view that the decision of the Privy Council did not apply to the facts of the case before him. With respect, we

differ.

[9] Now we come to the second question, whether Order XLI, Rule 1(3) forbids us to pass an ex parte order of stay. In answering the question we must remember at the outset how in some cases the very purpose of the appeal may be frustrated and injustice may result if such an ex parte order is not passed. Quite often, particularly, in these days, when it is difficult to get accommodation in trains or even in buses and there is even strike in the railways and bus transports, a party may not be able to come to Madras and file an appeal in time and the chances are that the application for excusing the delay