The appellate court has jurisdiction to grant an ex parte order of stay of execution of a decree sought to be appealed from, even if the appeal has been filed out of time and the application for excusing the delay under Section 5 of the Limitation Act has not yet been allowed.

VENKATARAMAN, J. :- The petitioner herein, Gouse Bi, was the 1st defendant in O.S. 703 of 1964 on the file of the City Civil Court, Madras. It was a suit for partition. A decree was passed on 8-9-1969, overruling a contention of hers that some property belonged to her absolutely as Mahar. She filed a memorandum of appeal to this court, but, since, it was out of time, she filed a petition, CMP No. 719 of 1972, under Section 5 of the Limitation Act, to excuse the delay in filing the appeal. Pending disposal of CMP No. 719 of 1972, she has filed CMP No. 8236 of 1973 for stay of further proceedings in O. S. 703 of 1964 on the file of the City Civil Court, Madras.

2. So far as we are aware, till recently, the uniform practice of this court has been to grant interim stay, if the court felt that it would be expedient to grant stay, and notice would be ordered of the interim stay along with the notice in the application under Section 5 of the Limitation Act. But in a recent decision in C. M. P. No. 6420 of 1973. Paul, J., has decided that till the delay is excused under Section 5 of the Limitation Act, the court cannot be said to be seized of the appeal and that the court cannot pass any interlocutory orders. The office therefore returned the petition C. M. P. 8236 of 1973, drawing the attention of the petitioner to the said decision of Paul. J., and asking her how in view of that decision the present petition is maintainable. The point has been argued before us by the petitioner's learned Counsel Mr. Hariharan. He contends that the decision of Paul. J., is wrong and that this court has jurisdiction to grant stay if it thinks fit to do so on merits.

3. As we observed, so far as we are aware, it had been the uniform practice of this court, till the decision of Paul, J, to grant interim stay, if the court thought fit to do so. However, since Paul, J., has decided otherwise, it is necessary to go into the matter fully Paul, J., has relied on the decision of the Travancore High Court in Ramayyan v. Ashtamoorthi Namboodri, 1962 Ker LT 500 : (1962 Ker LJ 681), which is cited in Mulla's C.P. Code, under Order XLI, Rule 1, as authority for the following commentary -

"It has been held that when an appeal is presented out of time and, a petition is filed for excusing the delay, no interlocutory orders can be passed until the petition is ordered and the appeal takes on file".

Paul, J., was not able to get at the decision. We have, however, been able to get the decision. It is a decision of T.C. Raghavan, J., in that case, the suit of the plaintiff was dismissed for default. An application for restoration was dismissed. The plaintiff filed a civil miscellaneous appeal against that and he also filed a regular appeal against the dismissal of the suit. Along with the regular appeal he filed an application to excuse the delay in filing the appeal, and he also filed an application for injunction. The District Judge granted the injunction. The defendant appealed to the High Court. The learned Judge set aside the decision of the District Judge, pointing out that the District Judge had overlooked the provisions of sub-rule (3) of Order XLI, Rule 1, which was in force in Travancore from June 1959. That provision had been inserted in Madras even in 1921 vide Fort St. George Gazette, dated 15-2-1921, Part II page 362. It is necessary to quote it in full -

"When an appeal is presented after the period of limitation prescribed therefor, it shall be accompanied by a petition 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, and the court shall not proceed to deal with the appeal in any way (otherwise than by dismissing it either under Rule 11 of this order or on the ground that it is not satisfied as to the sufficiency of the reason for extending the period of limitation) until notice has been given to the respondent and his object