However, what the Hon’ble Andhra Pradesh High Court with respect, does not appear to have considered is what has been considered by the Division Bench of this Court in Bhagwan Ganpatrao Godsay Vs. Kachrulal Bastimal Samdariya and connected matters (supra) that if the word “shall” in sub-rule (3) is construed as mandatory the appeal may become infructuous as the decree may have been executed by then. The whole object of bringing in Rule 3-A was to ensure that the Courts do not admit appeals and postpone the consideration of the question of limitation beyond the stage of admission. The mischief was in the practice of the Courts granting interim stay of execution of decrees without admitting appeals and the consideration of limitation was left open until the appeals were finally disposed. The purpose was not to frustrate the right of appeal itself but to regulate it in such manner by evolving a procedure that the Courts consider condonation of delay before admission of appeals. Also what the Hon’ble Andhra Pradesh High Court did not consider that the reference in sub-rule (3) in Rule 3-A is to a proposed appeal and not to an appeal. {Para 33}
34. Although the Learned Counsel have referred to the decision
of the Hon’ble Supreme Court on the interpretation of the word
“shall” in Sub-Rule (1) of Rule 3-A of Order XLI in the case of
State of M.P. and Anr. Vs. Pradeep Kumar and Anr.(2000) 7SCC
372 , however, no decision of the Hon’ble Supreme Court with respect to the interpretation/construction of the word “shall” in subrule (3) of Rule 3-A of Order XLI contrary to the decision of the Division Bench of this Court in the case of Bhagwan Ganpatrao Godsay Vs. Kachrulal Bastimal Samdariya and connected matters (supra) has been brought to my notice.
35. Ergo, considering the authoritative pronouncement of a Division Bench of this Court in the case of Bhagwan Ganpatrao Godsay Vs. Kachrulal Bastimal Samdariya and connected matters (supra) that the word “shall” used in sub-rule (3), of Rule 3-A in Order XLI of the CPC be construed as permissive and not mandatory in the absence of any decision to the contrary, I am bound by the same.
36. In this view of the matter, the applications for stay of the
impugned judgment and award passed under the MV Act in a
proposed First Appeal can be considered for ad-interim/interim
stay even if the condonation of delay application is pending.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO.655 OF 2018(delay)
Shriram General Insurance Company Limited V/s. Sou. Jyoti Vithoba Nahire and Anr
CORAM : ABHAY AHUJA, J.
PRONOUNCED ON : 21st September, 2023
1. By these interim applications, the Applicants are seeking stay
of the operation, implementation and execution of the respective
impugned judgments and awards passed by the respective Motor
Accident Claims Tribunals.
2. Since an issue was raised with respect to the
interpretation/construction of sub-rule (3) of Rule 3-A of Order
XLI of the Code of Civil Procedure, 1908 ( the “CPC”) which
directs that the Court shall not make order of stay of execution
pending disposal of the application for condonation of delay made
under Order XLI Rule 3-A (1) as to whether the said Rule was
imperative or permissive, this Court had vide order dated 3rd
August, 2023 in Interim Applications no. 13789 of 2023 and
13790 of 2023 in First Appeal Stamp No. 15533 of 2023 after
briefly hearing the learned Counsel for the applicant in the light of
Division Bench decision of this Court ( by Hon’ble Shri Justice G.
H. Guttal and Hon’ble Shri Justice P. V. Nirgudkar, as their
Lordships then were) in the case of Bhagwan s/Ganpantrao
Godsay Vs. Kachrulal s/Bastimal Samdariya and in connected
matters1 had invited other learned Counsel appearing in similar
applications and desirous of addressing the Court on the issue
1 Civil Revision Applications No. 6, 8, 9 and 10 of 1986 decided on 23rd January, 1987.
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whether the use of the word “shall” in Order XLI Rule 3-A (3) is
permissive or imperative.
3. Accordingly, on 11th August, 2023, learned Counsel had
addressed this Court on the issue and the arguments had been
concluded and orders were reserved. The learned Counsel were
also granted liberty to summarise their arguments and submit the
same in the form of written submissions.
4. I have now had the occasion to consider the submissions
made on behalf of the learned Counsel and also perused the
judgments in support.
5. Mr. Pandey, learned Counsel upon invitation of this Court has
drawn the attention firstly to the provisions of Rule 279 of the
Maharashtra Motor Vehicles Rules, 1989 (the “MV Rules”) to
submit as to how the provisions of Order XLI of the CPC apply to
appeals under Section 173 of the Motor Vehicles Act, 1988 (the
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“MV Act”). For the sake of convenience, the said Rule is usefully
quoted as under:-
“ 279. Form of appeal and contents of memorandum.- (1)
Every appeal against the award of the Claims Tribunal shall
be preferred in the form of a memorandum signed by the
appellant or an Advocate or Attorney of the High Court duly
authorised in that behalf by the applicant and presented to
High Court or to such officer as it appoints in this behalf. This
memorandum shall be accompanied by a copy of the award.
(2) The memorandum shall set forth concisely and under
distinct heads the grounds of objection to the award appealed
from without any argument or narrative, and such grounds
shall be numbered consecutively.
(3) Save as provided in sub-rules (1) and (2) the provisions of
Order XXI and Order XLI in the First Schedule to the Code of
Civil Procedure, l908 (V of l 908), shall, mutatis mutandis
apply to appeals preferred to High Court under Section 173.”
6. For the sake of completeness Section 173 of the MV Act,
which provides for appeals under the Act is also usefully quoted as
under:-
“173. Appeals.—(1) Subject to the provisions of subsection
(2), any person aggrieved by an award of a
Claims Tribunal may, within ninety days from the date
of the award, prefer an appeal to the High Court:
Provided that no appeal by the person who is
required to pay any amount in terms of such award
shall be entertained by the High Court, unless he has
deposited with it twenty-five thousand rupees or fifty
per cent. of the amount so awarded, whichever is less,
in the manner directed by the High Court:
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Provided further that the High Court may
entertain the appeal after the expiry of the said period
of ninety days, if it is satisfied that the appellant was
prevented by sufficient cause from preferring the
appeal in time.
(2) No appeal shall lie against any award of a Claims
Tribunal if the amount in dispute in the appeal is less
than ten thousand rupees.”
7. Referring to the above Section, Mr. Pandey would submit
that Section 173 (1) of the MV Act provides for filing of an appeal
by any person aggrieved by an award of a Claims Tribunal to the
High Court, subject to the provisions of sub-Section (2), within 90
days from the date of the award. Sub-Section (2) provides that no
appeal shall lie against any award of the Claims Tribunal, if the
amount in dispute in the appeal is less than Rs. 1 lakh. It is
submitted that the second proviso to Section 173(1) bars
entertaining the appeal after expiry of the period of 90 days, but if
the High Court is satisfied that the appellant was prevented by
sufficient cause from preferring the appeal in time, it may
entertain the appeal. Learned Counsel submits that the MV Act
does not provide for the procedure for the appeals to be filed
under the said Section though it provides the forum of the appeal
i.e. the High Court, however, as mentioned above it is Rule 279 (3)
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of the MV Rules, which makes it clear that the provisions of Order
XXI and Order XLI in the first schedule to the CPC shall apply to
appeals preferred to the High Court under Section 173.
8. Order XLI Rule 3-A of the CPC is usefully quoted as under:-
“3-A. Application for condonation of delay— (1)
When a 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 subrule
(1), the Court shall not made 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.”
9. Learned Counsel would submit that a plain reading of sub-
Rules 3-A (1) and (3) would suggest that where an application
has been made under sub-Rule (1) for condonation of delay, the
Court pursuant to sub-Rule (3) shall not make an order for stay of
execution of decree against which the appeal is proposed to be
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filed, so long as the Court does not after hearing under Rule 11
decide to hear the appeal.
10. Learned Counsel refers to the decision of the High Court of
Andhra Pradesh in the case of M/s United India Insurance Co. vs.
Undamatla Varalakshmi & Ors.2 and submits that the Andhra
Pradesh High Court has held that Order XLI Rule 3-A is a
mandatory provision and is a clear bar for passing an order of stay
of execution of a decree before the Court decides to hear the
appeal and there is no discretion in the Court in a time barred
appeal to grant stay of execution of the award or decree
conditionally or unconditionally. Learned Counsel would submit
that the Andhra Pradesh High Court relying upon the decision of
the Hon’ble Supreme Court in the case of Hindusthan Commercial
Bank Limited Vs. Punnu Sahu3, has observed that the expression
“entertain” means “adjudicate upon” or “proceed to consider on
merits”. The Andhra Pradesh High Court also relied upon the
decision of the Hon’ble Supreme Court in a more recent decision in
the case of Arcelormittal Nippon Steel (India) Ltd. Vs. Essar Bulk
2 IA No. 2 of 2023 in M. A. C. M. A.No.221 of 2023 decided on 5th July, 2023.
3 1971 (3) SCC 124
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Terminal Ltd.4, to elucidate on the expression “entertain” and held
that the said word means to consider by application of mind to the
issues raised. That the Court entertains the case when it takes a
matter up for consideration, which process of consideration could
continue till the pronouncement of judgment. Citing the aforesaid
decision, in paragraph 44, the Hon’ble Andhra Pradesh High Court
held that thus there was no question of entertaining an appeal to
proceed to consider the merits of the appeal with respect to the
order under appeal in a time bound appeal so long as the
condonation of delay matter is not decided.
11. The Andhra Pradesh High Court in paragraph 45 also went
on to hold that for deciding an application for interim relief, the
Court has to see if it is a case for grant of interim relief or not. The
Court has to satisfy, if any prima facie case is made out; if the
order under appeal is erroneous and if the operation is not stayed,
some irreparable injury is going to be caused to the appellant then
that may be a prima facie case. The Andhra Pradesh High Court
further observed that any such view, even a prima facie view,
cannot be taken unless the Court proceeds to consider the appeal
4 (2022) 1 SCC 712
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on its merits and demerits. Interim relief as such cannot be
entertained till the appeal is entertained and, it cannot be
entertained, so long as the delay condonation matter is not
decided. Interim relief cannot be granted just for the asking in a
time barred appeal. The Andhra Pradesh High Court after
considering the decision of the Hon’ble Supreme Court in the case
of Brahampal vs National Insurance Co.5, which relied upon
Balwant Singh Vs. Jagdish Singh6 held that the law of limitation is
a substantive law and has definite consequence on the right and
obligation of a party to the lis. It was held that once a valuable
right has accrued in favour of one party as a result of the failure of
the other party to explain the delay by showing sufficient cause
and its own conduct, it will be unreasonable to take away that
right on the mere asking of the applicant. The Andhra Pradesh
Court accordingly held in paragraph 51 that in a time barred
appeal, so long as the matter for condonation of delay was not
considered and decided in favour of the applicant for condonation
of delay, the valuable right of the successful litigant acquired on
the basis of judgment / award under challenge cannot be
interfered with or restricted to the execution of the decree only to
5 (2021) 6 SCC 512
6 (2010) 8 SCC 685
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a limited extent. That by grant of any such interim order at the
stage would put a restriction on the right of the claimant to get
execution of the award before the Tribunal. That the claimants had
acquired a right to treat the award as having attained finality on
expiry of the limitation period for filing an appeal, which could not
be interfered with pending consideration of the condonation of
delay application. It was accordingly held that in a time barred
appeal under Section 173 of the MV Act before the High Court,
stay of execution of the award cannot be granted, so long as the
delay condonation matter is not decided finally, in view of 2nd
proviso to Section 173 of the MV Act & Order XLI Rule 3A (3) of
the CPC.
12. Mr. Pandey, learned Counsel has also referred to the decision
of the Hon’ble Supreme Court in the case of Brahampal vs
National Insurance Co.(supra) and drawn the attention of this
Court to paragraph 8 of the said decision to submit that while
passing the said judgment, the Hon’ble Supreme Court was fully
aware that Chapter XII of the MV Act was a beneficial legislation
intended to protect the rights of the victims affected in road
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accidents. That it was a self contained code in itself providing for
procedures for filing claims, for passing award and for preferring
an appeal. That even the limitations for preferring the remedies
are contained in the code itself.
13. Learned Counsel then referred to the decision of the Hon’ble
Supreme Court in the case of Navinchandra N. Majithia Vs. State
of Maharashtra and others.7 Learned Counsel would submit that
in the said case the Hon’ble Supreme Court has while considering
rejection of an appeal filed in the Madhya Pradesh High Court
which was filed out of time unaccompanied by an application for
condonation of delay, while allowing the SLP permitting the
appellant to rectify and to file an application for condonation of
delay, observed that from a combined reading of sub Rules (1) and
(2) of Rule 3-A of Order XLI, it was manifest that the purpose of
requiring the filing of an application for condonation of delay
under sub Rule (1) alongwith a time barred appeal, was
mandatory in the sense that the appellant could not without such
application being decided, insist upon the Court to hear his time
barred appeal. It is submitted by the learned Counsel that, that
7 Decided on 4th September, 2000
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was the very purpose sought to be achieved by insertion of sub
Rules (1) and (2) of Rule 3A. Learned Counsel has quoted the
following paragraphs:-
“The following passage from the judgement of the
Division Bench of the Karnataka High Court can usefully
be quoted in this context: A combined reading of subrules
(1) and (2) of R.3A makes it manifest that the
purpose of requiring the filing of an application for
condonation of delay under sub-rule (1) along with a
time barred appeal, is mandatory, in the sense that the
appellant cannot, without such application being
decided, insist upon the Court to hear his time barred
appeal. That was the very purpose sought to be achieved
by insertion of sub-rules (1) and (2) of R.3A becomes
clear from the legislative history of new R.3A to which
we have already adverted.
We may also point out that a Division Bench of the
Patna High Court has adopted the same view even earlier
in State of Bihar & ors. vs. Ray Chandi Nath Sahay and
ors. (AIR 1983 Patna 189).
The object of enacting Rule 3-A in Order 41 of the
Code seems to be two-fold. First is, to inform the
appellant himself who filed a time barred appeal that it
would not be entertained unless it is accompanied by an
application explaining the delay. Second is, to
communicate to the respondent a message that it may
not be necessary for him to get ready to meet the
grounds taken up in the memorandum of appeal because
the court has to deal with application for condonation of
delay as a condition precedent.”
14. Mr. Pandey would submit that despite the clear wordings of
the Apex Court, it is presumed by the appellants that seeking stay
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in time barred appeals without even issuing notice to the other
parties is a matter of right.
15. The above decision in my view only refers to the
construction of the word “shall” used in sub-rule (1) but not with
reference to the use of the word “shall” in sub-rule (3) of Rule 3-A
of Order XLI. The context in both the rules are different: in subrule
(1) it is with respect to whether a condonation of delay
application supported by Affidavit is to accompany an appeal
whereas in sub-rule (3) it is in the context of making an order of
stay of execution of the decree against which the appeal is
proposed to be filed. In any event in the case of Navinchandra N.
Majithia Vs. State of Maharashtra and others (supra) although the
Hon’ble Supreme Court held that sub-rule (1) was mandatory it
also observed that the rule is not intended to operate as
unremediably or irredeemably fatal against the appellant if the
Memorandum is not accompanied by any such application at the
first instance and the deficiency is a curable defect. The Hon’ble
Supreme Court allowed the appeal and set aside the impugned
judgment allowing the appellant to pursue the condonation of
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delay application in filing the second appeal. Therefore, the said
decision of the Hon’ble Supreme Court may not be of much
assistance to the arguments advanced by Mr. Pandey.
16. On the other hand, Ms. Varsha Chavan, Mr. Devendranath S.
Joshi, Mr. Yuvraj Narvankar, Mr. Amol Gatne, Mr. Rahul Mehta,
learned Counsel have argued that if the stay application is not
entertained till the disposal of the delay application, the appeal
could become infructuous as then, the impugned judgment and
order may have been executed.
17. The main plank of their arguments rest on a decision of the
Division Bench of this Court in the case of Bhagwan Ganpatrao
Godsay Vs. Kachrulal Bastimal Samdariya and connected matters
(supra). Learned Counsel would submit that this decision was
pursuant to a reference made by a single judge who differed from
a view adopted by another judge of this Court on the construction
of Rule 3-A (3) of Order XLI of the CPC. It is submitted on their
behalf that the very question that has arisen herein has been
answered by the Division Bench in the said case and therefore, the
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views of the Division Bench of this Court would be binding on a
Single Judge of this Court.
18. It is pointed out that there were two questions formulated by
the Division Bench and the first question was the relevant one.
The said first question is set out hereunder:
“(1) Having regard to the prohibition enacted by Rule
3-A (3) of Order XLI of the Code of Civil Procedure
which directs that “the Court shall not make order of
stay of execution”, is the appellate Court empowered to
make interim orders of stay of execution of decrees
appealed from, pending disposal of the application for
condonation for condonation of delay made under
Order XLI, Rule 3-A (1)?
19. The Division Bench has while considering question (1)
recorded that the said question raises certain further questions; (a)
whether the prohibition enacted by the words “shall not make
order of stay of execution” in Rule 3-A (3) is mandatory. (b)
Whether the Legislature intended that during the interregnum
between the making of the application for condonation of delay
and the hearing under Order XLI, Rule 3-A, the decrees appealed
from should be executed thereby rendering the appeal infructuous.
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(c) Whether the Court can resort to its inherent powers to prevent
the failure of justice by granting interim stay notwithstanding the
aforementioned prohibition.
20. Since question (2) concerned the Hyderabad Rent Act, it
would not be necessary to discuss the same as the question does
not relate to the discussion at hand.
21. The Division Bench of this Court firstly considered the
scheme of Order XLI Rule 3-A as well as its history and the
mischief it sought to plug. After recounting the same in paragraph
11, the Division Bench records the reason for passing Rule 3-A
stating that it was obviously to change the existing law and
therefore, the reason for the passing of the Act must lie in some
defect in the existing law. That if the existing law is not defective,
Parliament would not want to change it. It is the mischief to which
the amendment is directed. The Division Bench also gave a
background and quoted the statement of objects and reasons for
the enactment of Rule 3-A as under:-
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“Where an appeal is filed after the expiry of the period
of limitation, it is the practice to admit the appeal subject
to the provisions as to limitation being raised at the time
of hearing. This practice has been disapproved by the
Privy Council which has stressed the expediency of
adopting a procedure for securing the final determination
of the question as to limitation even at the stage of
admission of the appeal. New Rule 3-A is being inserted
to give effect to the said recommendation”.
Clause 87(ii) reads:-
“The Committee is of the view that the Court should not
be empowered to grant ad interim stay of execution of
the decree unless the Court has, after hearing under Rule
11 of Order XLI, decided to hear appeal, Sub-rule (3) in
the proposed Rule 3-A of Order XLI has been inserted
accordingly”
22. Thereafter, it summarized the following facts appearing
from statement of objects and reasons as under:-
“(i) The practice “to admit appeal subject to the
provisions as to the limitation being raised at the time of
hearing” was intended to be curbed. This was the mischief
sought to be suppressed.
(ii) It was expedient to adopt a procedure for securing the
final determination of the question as to limitation even at
the stage of admission of the appeal.
(iii) The Court should not be empowered to grant ad
interim stay of execution of the decrees unless the Court
has decided to hear the appeal under Rule 11.
What was sought to be curbed by the Legislature was the
practice to admit appeals without deciding the question
of limitation. The dominant object of the legislative
purpose was to ensure that the courts do not admit
appeals and postpone the consideration of the question
of limitation beyond the stage of admission. For this
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purpose the Legislature thought it expedient to evolve a
procedure. In other words, the mischief was in the
practice of the courts of granting interim stay of
execution of the decrees without admitting appeals. The
practice left the consideration of limitation open until the
appeals were finally disposed of. The purpose was not to
frustrate the right of appeal itself but to regulate it in
such manner that the Courts consider condonation of
delay before admission of appeals. This would be clear
from the words “the expediency of adopting a procedure
for securing the final determination of the question as to
limitation” used in the statement of objects and reasons”.
23. The Division Bench observed that what was sought to be
curbed by the legislature was the practice to admit appeals without
deciding the question of limitation. The dominant object of the
legislative purpose was to ensure that the Courts do not admit
appeals and postpone the consideration of the question of
limitation beyond the stage of admission. It is for this purpose the
legislature thought it expedient to evolve a procedure. The
mischief was in the practice of the Courts granting interim stay of
execution of the decrees without admitting appeals. The practice
left the consideration of limitation open until the appeals were
finally disposed. The purpose was not to frustrate the right of
appeal itself but to regulate it in such manner that the Courts
consider condonation of delay before admission of appeals. This
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the Division Bench said would be clear from the words “the
expediency of adopting a procedure for securing the final
determination of the question as to limitation” used in the
statement of objects and reasons.
24. After considering in great detail the application of rules of
construction, observing that the consequences of literal
construction of Rule 3-A of Order XLI as being undesirable which
the Parliament could not have intended, relying upon the decisions
of this Court in the case of N. Dasgupta Vs. Prakash K. Shah8 as
well as the decision of the Hon’ble Supreme court in the case of
Govindlal Chaganlal Patel Vs. APMC Godhra and ors.9, as well as
the scheme of Order XLI Rule 3-A as expounded earlier that the
application for condonation of delay must be disposed before the
hearing of the appeal under Rule 11 and after considering the
legislative intent of inserting Rule 3-A was that the right of appeal
created by Section 96 should be advanced as the intent was that
the Court should not admit appeals and stay execution of decrees
without deciding the question of limitation, the Division Bench
8. AIR 1984 Bombay 390
91975 (2) SCC 482*
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held that the legislature intended that the Appellate Court may
exercise its power of granting stay during the 60 days in which the
right of appeal could be exercised without extending such period
without admitting the appeal.
25. The Division Bench observed that in Rule 3-A (3) the
reference is to the “proposed appeal” and not to appeal. Rule 1 of
Order XLI employs the word ‘appeal’; this distinction implies that
the memorandum of appeal which is barred by limitation and
therefore accompanied by an application for condonation of delay
under Rule 3-A (1) is not an appeal but a proposed appeal. The
legislature implied that the proposed appeal be transformed into
an appeal after which the delay is condoned and the appeal is
heard under Rule 11. Rule 11-A enjoins the Court to endeavour to
conclude the hearing of appeal within 60 days from the date from
which the memorandum of appeal is presented. In other words the
hearing under Rule 11 must conclude within 60 days from the date
of presentation of the proposed appeal. In order that the proposed
appeal is transformed into an appeal, the proceedings must not be
short circuited by execution of decree. The Division Bench
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observed that it stands to reason therefore that in order to fulfil
the legislative intent of transformation of proposed appeal into an
appeal, the proceeding should not be frustrated by execution of a
decree. The Division Bench then went on to consider the difference
between appeals against decrees and appeals against orders which
were not decrees and observed that Order XLI Rule 3-A would not
apply to appeals from orders. It also observed that it was unlikely
that the legislature intended that an appeal from a decree may be
frustrated by operation of Rule 3-A and the appeal from an order
should not be subjected to similar consequence. Then the Court
went on to expound on Rule 1-A of Order XLIII after which Rule 3-
A was discussed as being applicable to an Appellate Court and not
to a Trial Court, from whose decree the appeal is preferred.
26. Rule 3-A applies to Appellate Court and not trial Court from
whose decree the appeal is preferred. Under Rule 5 (2) “the Court
which passed the decree” is empowered to “order the execution to
be stayed” if the decree is appealable. The only restriction on this
power is that the application for stay must be made “before the
expiration of the time allowed for appealing therefrom”. There is
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no restriction which limits the exercise of this power, so that the
stay does not extend beyond the period of limitation prescribed for
the appeal. The application may be made within the period of
limitation but the Court’s order may result in staying the execution
which may well extend beyond the period of limitation prescribed
for the appeal. While an order of the Court from whose decree the
appeal is preferred may result in staying execution beyond the
period of limitation, yet the Appellate Court which is seized of the
“proposed” appeal cannot stay the execution even for a few days.
The Division Bench observed that such an absurd result was not in
the intendment of the legislature and that in their opinion, the
power to stay the execution of decrees during the period of 60
days referred to in Rule 11-A was intended to be conferred on the
Appellate Courts.
27. Thereafter, the question as relevant to the discussion at hand
whether the use of the word “shall” in Order XLI Rule 3-A (3)
indicates legislative imperative was considered by the Division
Bench in paragraph 21. The Division Bench, while observing that
the words “shall” and “may” are often treated as interchangeable,
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raised a question whether in the instant case did the legislature
intend that in all situations and at all events its command shall be
obeyed or did it expect the courts to comply with it substantially.
Citing the decision of the Hon’ble Supreme Court in the case of
Govindlal Patel Vs. Agricultural Produce Market Company10, the
Division Bench noted that ordinarily the answer depends upon the
language in which the intent is clothed. The meaning and
intention of the legislature must govern and these are to be
ascertained not only from the phraseology of the provision but also
by considering its nature, its design and the consequences, which
would follow from construing it one way or the other. The Division
Bench relying upon the decision of the Hon’ble Supreme Court in
the case of Haridwar Singh Vs. Begum Sumvrui11, observed that no
universal rule can be laid down and the subject matter should be
looked into and the importance of the provision that is disregarded
and the relation of that provision to the general object intended to
be secured, is to be considered.
10 1975 (2) SCC 482
11 1973 (3) SCC 889
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28. The Division Bench thus held that the construction of the
word “shall” whether it is mandatory or imperative should be
consistent with the object of the legislature to expedite disposal of
the cases of condonation of delay and to ensure that such
applications subserve the remedy of appeal itself. The provision of
60 days for transformation of the proposed appeal (Rule 3-A(3))
into an appeal (Rule 11) are consistent with the permissive nature
of the word “shall”. The object of the enactment is merely to
provide a regulatory procedure to prevent appeals being admitted
without considering the question of condonation of delay. The
permissive or directory use of the word “shall” fully conforms to
this legislative intent and that if the same is construed as
mandatory, the appeal may become infructuous thereby destroying
the regulatory content or Rule 3-A for, then there is nothing left to
regulate. Holding thus, the Division Bench opined that the word
“shall” in Rule 3-A (3) has not been used to denote the imperative.
It is permissive while the application for condonation of delay is
pending during the 60 days provided by the statute. Paragraph 21
of the decision of the Division Bench of this Court is usefully
quoted as under:-
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“21. Another question raised is whether the use of word
'shall' in Order 41, Rule 3-A(3) indicates Legislative
imperative. The words 'shall' and 'may' are often treated
as inter-changeable. As the Supreme Court held in
Govindlal Patel v. Agriculture Produce Market
Committee, 1975(2) SCC 482 the word 'shall' must
normally mean 'shall' and not 'may'. But in the instant
case did Legislature intend that in all situations and at all
events its command shall be obeyed or does it expect the
courts to comply with it substantially? Ordinarily the
answer depends upon the language in which the intent is
clothed. The meaning and intention of the legislature
must govern and these are to be ascertained not only
from the phraseology of the provision but also by
considering its nature, its design and the consequences,
which would follow from construing it the one way or
the other. (Crawford on Statutory Construction-quoted by
the Supreme Court in Govindlal v. Agriculture Produce
Market Committee, 1975(2) SCC 482. No universal rule
can be laid down in this matter. In such case, we must
look to the subject matter and consider the importance of
the provision disregarded and the relation of that
provision to the general object intended to be secured
Hardwarsingh v. Begun Sumbrui,1973(3) SCC 889. Thus,
is the construction of the word 'shall' as mandatory or
imperative consistent with the object of the Legislature to
expedite disposal of the cases of condonation of delay
and to ensure that such applications subserve the remedy
of appeal itself? The provision of 60 days for the
transformation of the 'proposed' appeal [R. A(3)] into an
'appeal' (Rule 11) the situations like those set out in
paragraphs 19 and 20 are consistent with permissive
nature of the word 'shall'. The object of the enactment is
merely to provide a regulatory procedure to prevent
appeals being admitted without considering the question
of condonation of delay. The permissive or directory use
of the word 'shall' fully conforms to this Legislative
intent. If construed as mandatory, the appeal may
become infructuous, thereby destroying the regulatory
content of Rule 3-A for, then there is nothing left to
regulate.
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In our opinion, therefore, the word 'shall' in Rule 3-A has
not been used to denote the imperative. It is permissive
while the application for condonation of delay is pending
during the 60 days provided by the statute.”
29. Justice Guttal’s views were concurred by Justice Nirgudkar
holding that the word “shall” used in Order XLI Rule 3-A (3) is
directory and not mandatory. Justice P. V. Nirgudkar referred to the
famous quotation from the decision by Justice V. R. Krishna iyer in
the case of The State of Punjab and another Vs. Shamlal Murari
and another12 as under:-
“Procedural law is not to be a tyrant but a servant, not
an obstruction but an aid to justice. Procedural
prescriptions are not the handmaid and not the
mistress, a lubricant, not a resistant in the
administration of justice. Where the non-compliance,
though procedural, will thwart fair hearing of
prejudice doing of justice to parties, the rule is
mandatory. But, grammar apart, if the breach can be
corrected without injury to a just disposal of the case,
the court should not enthrone a regulatory
requirement into a dominant desideratum. After all,
courts are to do justice, not to wreck this end product
on technicalities”
30. The learned Counsel have also cited a few other decisions
viz. a decision of a Single Judge of this Court in the case of Shaikh
Ibrahim Janmohammad Vs. Tekchand Alias Ravindra Fakirchand
12 1976 (1) SCC 719
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Rathod13 where also the word “shall” was construed as “may” in
the interest of justice relying upon the decision of the Gujarat High
Court in the case of Naran Annappa Shethi Vs. Jayantilal Chunilal
Shah.14 The following paragraph in the case of Shaikh Shaikh
Ibrahim Janmohammad Vs. Tekchand Alias Ravindra Fakirchand
Rathod (supra) is usefully quoted as under:-
“In view of the amended provisions of Order 41 of
the Civil Procedure Code an application to
condonation of delay in filing an appeal has to be
decided before admitting the appeal and issuing
notice to the Court below under Rule 13 of Order 41
of the Civil Procedure Code. Sub-clause (3) of Rule
3-A of O.41 reproduced above provides that an order
for stay of execution of decree shall not be made as
long as the Court does not after hearing under Rule
11 decide to hear the appeal. The Civil Procedure
Code has to be interpreted so as to advance the
cause of justice. In case a decree is allowed to be
executed before deciding the application for
condonation of delay and also before hearing under
Rule 11 C.P.C., the judgment-debtor would be put to
a great loss and inconvenience in case later on the
Court condones the delay and also admits the appeal
on hearing under Rule 11. This Rule was considered
by the Gujrat High Court in Naran Annappa Shethi v.
Jayantilal Chunilal Shah, 1986 Guj. L. R. 206 and
after exhaustive discussion held that the rule was
not mandatory and despite the word “shall” the
provision made in sub-clause(3) of Rule 3-A was
only directory. I fully agree with the reasoning given
in that judgment and on the same reasoning I find
that the rule is not mandatory. Therefore, if in the
interest of justice the Court thinks necessary to stay
13 Civil Revision Application No. 723 of 1985 dated 23rd October, 1986.
14 1986 Guj. L. R. 226
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the execution for the decree pending hearing of the
application for condonation of delay, it can certainly
stay the execution pending hearing and decision of
the application for condonation of delay and
admission of appeal”
31. Paragraph 7 of the decision in the case of Naran Annappa
Shethi Vs. Jayantilal Chunilal Shah (supra) is also usefully quoted
as under-
“7. The provisions of R. 3-A cannot be said to be
mandatory for the following reasons:
(a) The provision contained in O. 41, R. 3A of the Code
is in the realm of procedure. The procedural law as far
as possible cannot and should not be interpreted in such
a way so as to take away the rights of the parties.
In this connection the observations of the Supreme
Court in the case of Sangram Singh v. Election Tribunal,
Kotah, reported in AIR 1955 SC 425, may be referred to:
“Now a Code of Procedure must be regarded as such. It
is ‘procedure’, something designed to facilitate justice
and further its ends: not a penal enactment for
punishment and penalties: not a thing designed to trip
people up. Too technical a construction of sections that
leaves no room for reasonable elasticity of interpretation
should therefore be guarded against (provided always
that justice is done to ‘both’ sides) lest the very means
designed for the furtherance of justice be used to
frustrate it.”
Therefore, unless there is compulsion, the procedural
law should be read so as to advance the cause of justice
and should not be strictly construed so that the vested
rights of the parties to get a matter adjudicated on
merits are frustrated.
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(b) The contention that having regard to the wordings
of R. 3-A of O. 41 of the Code, the provision has got to
be construed as mandatory cannot be accepted. It is true
that looking to the phraseology of the provisions of O.
41, R. 3-A, one may be tempted to say that the provision
is mandatory. This is because of the use of the phrase “it
shall be accompanied by an application supported by
affidavit.” While adopting the literal construction of the
provision, one has got to keep in mind the intention of
the Legislature in enacting the provision. As stated
above, the intention of the Legislature was to see that
the practice of deferring the question of limitation and
deciding the same together with the final hearing of the
appeal was not proper and that was required to be
stopped. Therefore, the provision for an application for
condonation of delay and for deciding the same before
admitting the appeal has been made. There is no other
virtue in insisting upon an appeal memo being
accompanied by such an application supported by
affidavit as held by the Supreme Court in the case of
State of M.P. v. Azad Bharat Finance Co. reported in AIR
1967 SC 276, if a statute leads to absurdity, hardship or
injustice, presumably not intended, a construction may
be put upon it which modifies meaning of words and
even the structure of the sentence. In Para 5 of the
judgment, the Supreme Court has observed:
“It is well settled that the use of the word “shall” does
not always mean that the enactment is obligatory or
mandatory; it depends upon the context in which the
word “shall” occurs and the other circumstances.”
(c) In the instant case, if strict adherence to the
provisions of R. 3-A is insisted upon, it is likely to result
into immense hardship, inconvenience and in many
cases, it will surely lead to miscarriage of justice. There
are likely to be cases in which the appellant may be
bona fide believing that his appeal was within time; or
the Court may, while considering the appeal at the final
hearing stage, think that the appeal was filed beyond
the period of limitation. At the stage of final hearing
only, it may come to the notice of the Court or it may be
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pointed out by the other side that the appeal was in fact
filed beyond the period of limitation. The Court may
come to the conclusion that the appeal, as a matter of
fact, was filed after the expiry of the period of
limitation. The Court may also find that it was a case of
bona fide mistake. In such cases, if strict adherence to
the provisions of O. 41, R. 3-A is insisted upon, the
appeal will have to be dismissed as being time-barred
without considering the question of condonation of
delay because there was no application accompanying
the appeal memo praying for condonation of delay. Such
an absurd result would never be intended by the
Legislature. As a matter of fact, the Legislature never
wanted to cover such type of cases. The only intention
of the Legislature was to see that the question of
limitation should be decided initially before admitting
the appeal. For achieving this object it is not necessary
that there must be a written application praying for
condonation of delay and that such application should
be accompanied with the appeal memo.
(d) Despite the use of the word ‘shall’, the provision
made is only directory. The surest test for determination
as to whether the provision is mandatory or directory is
to see as to whether the sanction is provided therein. If
one looks at the provision of O. 41, R. 3-A it is clear that
there is no such sanction provided in the rule itself. In
this view of the matter, the provision has got to be
construed as directory.
(e) At this stage, reference may be made to a Division
Bench judgment of the Patna High Court in the case of
State of Bihar v. Ray Chandi Nath, AIR 1983 Patna 189.
In that case also the provisions of O. 41, R. 3-A came up
for interpretation and the view taken by the Patna High
Court is that the provision is directory and not
mandatory.
(f) In both the decisions relied upon by the counsel for
the respondent-landlord, the provisions of O. 41, R. 3-A
have been held to be mandatory. No reasons have been
assigned why the provision is held to be mandatory.
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Probably the learned Judges of the High Court of Kerala
and High Court of Karnataka who decided the aforesaid
cases were persuaded to hold the provision mandatory
on account of the language of the provision. With
utmost respect, it is not possible to agree with the view
taken by the Kerala and Karnataka High Courts. The
view taken in these two decisions is literal one and it
would frustrate the ends of justice.
(g) The following passage from Crawford on Statutory
Construction (Ed. 1940, Article 261, p. 516) may be
seen:
“The question as to whether a statute is mandatory or
directory depends upon the intent of the legislature and
not upon the language in which the intent is clothed.
The meaning and intention of the legislature must
govern, and these are to be ascertained, not only from
the phraseology of the provision, but also while
considering its nature, its design and the consequences
which would follow from construing it the one way or
the other.”
The aforesaid passage has been approvingly quoted by
the Supreme Court in the case of Govindlal Chhaganlal
Patel v. Agricultural Produce Market Committee,
Godhra, reported in AIR 1976 SC 263. Applying this
well recognised canon of construction of statutes, the
conclusion is inescapable that the word ‘shall’ used in
the provision is directory and not mandatory and,
therefore, it must be read as ‘may’.”
32. No doubt that the decision of the Division Bench of the
Andhra Pradesh High Court in in M/s United India Insurance Co.
vs. Undamatla Varalakshmi & Ors (supra) presents a possible
interpretation of sub-rule (3) of Rule 3-A of Order XLI of the Code
of Civil Procedure, when it holds that in a time barred appeal so
long as the matter for condonation of delay is not considered and
decided in favour of the applicant for condonation of delay the
valuable right of the successful litigant acquired on the basis of the
judgment/award under challenge cannot be interfered with or
restricted and that in a time barred appeal under Section 173 of
the MV Act before the High Court, stay of execution of the award
cannot be granted, so long as the delay condonation matter is not
decided finally, in view of 2nd proviso to Section 173 of the MV Act
and Order XLI Rule 3A (3) of the CPC.
33. However, what the Hon’ble Andhra Pradesh High Court with
respect, does not appear to have considered is what has been considered by the Division Bench of this Court in Bhagwan Ganpatrao Godsay Vs. Kachrulal Bastimal Samdariya and connected matters (supra) that if the word “shall” in sub-rule (3) is construed as
mandatory the appeal may become infructuous as the decree may
have been executed by then. The whole object of bringing in Rule
3-A was to ensure that the Courts do not admit appeals and postpone
the consideration of the question of limitation beyond the
stage of admission. The mischief was in the practice of the Courts
granting interim stay of execution of decrees without admitting appeals
and the consideration of limitation was left open until the
appeals were finally disposed. The purpose was not to frustrate the
right of appeal itself but to regulate it in such manner by evolving
a procedure that the Courts consider condonation of delay before
admission of appeals. Also what the Hon’ble Andhra Pradesh High
Court did not consider that the reference in sub-rule (3) in Rule 3-
A is to a proposed appeal and not to an appeal.
34. Although the Learned Counsel have referred to the decision
of the Hon’ble Supreme Court on the interpretation of the word
“shall” in Sub-Rule (1) of Rule 3-A of Order XLI in the case of
State of M.P. and Anr. Vs. Pradeep Kumar and Anr.(2000) 7SCC
372 , however, no decision of the Hon’ble Supreme Court with respect
to the interpretation/construction of the word “shall” in subrule
(3) of Rule 3-A of Order XLI contrary to the decision of the Division
Bench of this Court in the case of Bhagwan Ganpatrao Godsay
Vs. Kachrulal Bastimal Samdariya and connected matters
(supra) has been brought to my notice.
35. Ergo, considering the authoritative pronouncement of a Division
Bench of this Court in the case of Bhagwan Ganpatrao Godsay
Vs. Kachrulal Bastimal Samdariya and connected matters (supra)
that the word “shall” used in sub-rule (3), of Rule 3-A in Order XLI
of the CPC be construed as permissive and not mandatory in the
absence of any decision to the contrary, I am bound by the same.
36. In this view of the matter, the applications for stay of the
impugned judgment and award passed under the MV Act in a
proposed First Appeal can be considered for ad-interim/interim
stay even if the condonation of delay application is pending.
37. Although the Learned Counsel have referred to other
decisions, however, considering that there is an authoritative
pronouncement on a reference, by a Division Bench of this Court
on the interpretation of sub rule (3), of Rule 3-A, I do not deem it
necessary to deal with the same. For the same reason, the other
arguments of the learned Counsel need not be gone into.
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38. This Court would like to place on record its appreciation for
the presentation made by all the Learned Counsel.
39. In view of the aforesaid, I now proceed to consider each of
these applications.
CIVIL APPLICATION NO.656 OF 2018 (stay)
IN
FIRST APPEAL (S.T.) NO.25979 OF 2017
Shriram General Insurance Company
Limited Through
Mr. Satpalsingh Rajput Manager Legal ...Applicant/Appellant
V/s.
Sou. Jyoti Vithoba Nahire and Anr ...Respondents
40. Learned Counsel would submit that the implementation,
operation and execution of the judgment and award dated 25th
January, 2017 be stayed, subject to deposit of entire decretal
amount.
41. Having heard learned Counsel and having perused the
application, let the implementation, operation and execution of the
judgment and award dated 25th January, 2017 be stayed, subject to
deposit of the entire decretal amount along with interest in the
concerned Tribunal within a period of four weeks.
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42. List on 19th October, 2023 alongwith Interim Applications
No. 655 of 2023.
WITH
INTERIM APPLICATION NO.14070 OF 2023 (stay)
IN
FIRST APPEAL (S.T.) NO.13289 OF 2023
Mr. Hiralal Bhansilal Khinvasara ...Applicant/Appellant
V/s.
The New India Assurance Co. Ltd
and Anr ...Respondents
43. Learned Counsel would submit that the implementation,
operation and execution of the judgment and award dated 28th
November, 2018 be stayed, subject to deposit of entire decretal
amount.
44. Having heard learned Counsel and having perused the
application, let the implementation, operation and execution of the
judgment and award dated 28th November, 2018 be stayed, subject
to deposit of the entire decretal amount along with interest in the
concerned Tribunal within a period of four weeks.
45. List on 19th October, 2023 alongwith Interim Applications
No. 14068 of 2023,
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WITH
INTERIM APPLICATION NO.13790 OF 2023(stay)
IN
FIRST APPEAL (S.T.) NO.15533 OF 2023
United India Insurance Co. Ltd
Mumbai ...Applicant/Appellant
V/s.
Mr. Amit Satish Puri and Ors ...Respondents
46. Learned Counsel would submit that the implementation,
operation and execution of the judgment and award dated 12th
January, 2023, be stayed, subject to deposit of entire decretal
amount.
47. Having heard learned Counsel and having perused the
application, let the implementation, operation and execution of the
judgment and award dated 12th January, 2023 be stayed, subject to
deposit of the entire decretal amount along with interest in the
concerned Tribunal within a period of four weeks.
48. List on 19th October, 2023 alongwith Interim Applications
No. 13789 of 2023.
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WITH
INTERIM APPLICATION NO.14003 OF 2023 (stay)
IN
FIRST APPEAL (S.T.) NO.16797 OF 2023
IFFCO Tokio General Insurance
Company Ltd ...Applicant/Appellant
V/s.
Smt. Vimal Suresh Borage and Ors ...Respondents
49. Learned Counsel would submit that the implementation,
operation and execution of the judgment and award dated 9th
March, 2003 be stayed, subject to deposit of entire decretal
amount.
50. Having heard learned Counsel and having perused the
application, let the implementation, operation and execution of the
judgment and award dated 9th March, 2023 be stayed, subject to
deposit of the entire decretal amount along with interest in the
concerned Tribunal within a period of four weeks.
51. List on 19th October, 2023 alongwith Interim Applications
No. 14002 of 2023.
(ABHAY AHUJA, J.)
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