The main legal point established is that the appeal must be registered after deciding the application for condonation of delay before an interim stay can be granted, and the Sub Divisional Collector has the authority to review his own order.

Vivek Singh Thakur, J.

1. Partition order dated 21.6.2016, passed by Assistant Collector 1st Grade, in proceedings initiated by respondents No. 1 to 8, was assailed by petitioners herein before Sub Divisional Collector by filing an appeal accompanying stay application under Order 41 Rule 5 C.P.C. read with Section 151 C.P.C. with an application under Section 5 of Limitation Act for condonation of delay in filing the appeal.

2. On 19.1.2017, on application of petitioners, Sub Divisional Collector, pending application under Section 5 of Limitation Act, by referring application filed by petitioners under Order 41 Rule 5 with time barred appeal proposed against order dated 21.6.2016, passed ad interim ex parte injunction order, staying the said order passed by Assistant Collector in partition proceedings, whereupon, after service, an application under Order 41 Rule 3A and Rule 11 C.P.C. read with Order 47 Rule 1 C.P.C. and Section 16 of H.P. Land Revenue Act was preferred by respondents contesting appeal, for review/recalling of order dated 19.1.2017 passed by Sub Divisional Collector in application under Order 41 Rule 5.

3. Petitioners herein filed reply to the application and after considering rival contention of parties, Sub Divisional Collector reviewed his order vide impugned order dated 30.5.017 and suspended ad interim stay granted by him, on the ground that unless application under Section 5 of Limitation Act is decided in favour of petitioners, there is no appeal registered and pending before him, and also, the application for interim stay under Order 41 Rule 5 C.P.C. and before allowing application for condonation of delay, as envisaged in Order 41 Rule 3A (3) C.P.C., no stay of execution of impugned order can be passed in such appeal.

4. Order 41 Rule 3A C.P.C. provides that Court shall proceed to deal with the appeal under Rule 11 only after finally deciding the application for condonation of delay and therefore, an order for stay of execution of decree, in an application preferred under Order 41 Rule 5 C.P.C., against which appeal is proposed to be filed, shall not be made, unless the appeal is not considered under Order 41 Rule 11 C.P.C.

5. It is contended that application under Order 41 Rule 3A (3) C.P.C. read with Order 47 Rule 1 C.P.C and Section 16 of H.P. Land Revenue Act was filed by respondents herein, beyond limitation period of 90 days and delay in making the said application, as required under proviso (b) of Section 16 of H.P. Land Revenue Act, was not explained much less satisfactorily either in the said application or in separate application for condonation of delay and therefore, Sub Divisional Collector has committed an illegality in entertaining the said application and consequently suspending his order dated 19.1.2017 vide impugned order dated 30.5.2017. It is true that unless sufficient cause, satisfying the Court, preventing applicant from preferring review within 90 days, is explained, as required in proviso (b) of Section 16 of H.P. Land Revenue Act, review petition/application is not to be entertained. But this issue is not relevant for the reason that under Section 16 of H.P. Land Revenue Act, Sub Divisional Collector himself also was empowered to review his mistake or error apparent on the face of record and in absence of validly constituted application before him, he had committed a mistake and this error was apparent on face of record. Therefore, irrespective of non-entertainable time barred application for review, Sub Divisional Collector has rightly suspended his order dated 19.1.2017 passed in non-existing application under Order 41 Rule 5 read with Section 151 C.P.C. for want of existence of appeal before decision in application under Section 5 of the Limitation Act.

6. Order 41 Rule 3A (3) C.P.C. prohibits Courts from staying execution of decree under challenge in appeal before deciding to hear the appeal after hearing it under Order 41 Rule 11 C.P.C., but this provision is to be int