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
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