State of Kerala vs C.U. Scaria and Another

Jagannadha Rao, C.J.—C.M.P. No. 1672 of 1993 is filed for condonation of delay of 26 days in the filing of the writ appeal. The appeal is filed by the State of Kerala questioning the seizure of the vehicle of the Divisional Forest Officer pursuant to an order of attachment. Pending disposal of the appeal, petitioner has filed CMP 1681 of 1993 for grant of interim stay. Notice of the papers was received by Sri K. Balakrishnan, Advocate who was representing the contesting respondent before the learned single Judge, but he states that he has no instructions to appear in this matter. At any rate, he requests time for filing counter in the delay condonation petition.

A question has, therefore, arisen whether it is open to this Court to grant orders of stay in writ jurisdiction and particularly in this writ appeal pending disposal of the delay condonation petition wherein request is made for condoning the delay in filing of the writ appeal.

We are of the view that in view of the Explanation to Section 141 of the Code of Civil Procedure, Order XLI of the CPC is not attracted to this appeal and, therefore, Order XLI, Rule 3-A(3) does not apply. The provision in Order XLI Rule 3-A(3) reads as follows:

"(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."

Sub-rule (1) of Order XLI Rule 3-A states as follows:

"(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."

If Order XLI Rule 3-A applied to the facts of the case in the proceedings in writ appeal, it would perhaps have been permissible for the respondent to contend that till the delay condonation petition was disposed of, no orders of stay could be passed. But, in view of the Explanation to Section 141, CPC, the provisions of the CPC are not attracted except to the extent mentioned in Rule 159 of the Rules of the High Court of Kerala, 1971. Rule 159 does not enable the application of Order XLI of CPC. It only deals with the applicability of Order XLI-A except Rule 2 thereof. Therefore, there is no question of Order XLI Rule 3-A(3) being attracted to writ appeals. In that view of the matter, it is open to this Court to grant interim orders of stay pending disposal of the delay condonation petition filed in writ appeals.

For the aforesaid reasons, while directing notice to the respondents in the delay condonation petition, we grant interim stay in CMP 1681 of 1993 pending disposal of the delay condonation petition.