Appellate courts may exceptionally stay decree execution while delay condonation is pending, Calcutta High Court rules; relief denied on the facts of the case

The respondent obtained an ex parte decree for recovery of possession on 10 July 2012.

The predecessor-in-interest of the petitioners sought to set it aside under Order IX Rule 13 CPC, but that application was dismissed for default; a restoration application remained pending.

The decree was put into execution in 2017.

The petitioners later filed an appeal under Section 96 CPC with an application to condone an approximately ten-year delay, and sought a stay of execution.

The appellate court refused a stay while the delay application remained undecided and the appeal had not been taken up under Order XLI Rule 11 CPC.

The petitioners challenged that refusal under Article 227 of the Constitution.

The High Court noted the petitioners’ prior proceedings, delays, and requests for time, as well as that evidence on the delay application remained incomplete.

1. Whether the appellate court was justified in refusing to stay execution solely because the application to condone delay was pending and the appeal had not been admitted under Order XLI Rule 11 CPC.

2. Whether the circumstances justified an exceptional departure from the restriction in Order XLI Rule 3A(3) CPC and an interim stay of execution.

Order XLI Rule 3A(1)–(2) CPC requires a delayed appeal to be accompanied by an application explaining the delay and provides that the delay application must be decided before the court proceeds to deal with the appeal under Rule 11 or Rule 13.

Rule 3A(3) ordinarily bars a stay of execution until, after hearing under Rule 11, the court decides to hear the appeal.

The Court held that this procedural restriction is directory, not absolute: a court may depart from it and act ex debito justitiae in exceptional and extraordinary circumstances where refusing relief would produce inequitable consequences, but a stay is not available merely because an appeal has been filed.

The Court relied on Sushil Kumar Sen v. State of Bihar and State of Punjab v. Shamlal Murari for the principle that procedural law should aid, not obstruct, justice.

The Court relied on Ram Ch. Sinha v. Sm. Protiva Dutta, Durgapada Patra v. Estate Officer, SER, and Bhagwan v. Kachrulal in considering the possibility of exceptional relief.

It also considered State of West Bengal v. Somdeb Bandyopadhyay on interim orders before condonation of delay and Rahul S. Shah v. Jinendra Kumar Gandhi on expeditious disposal of execution proceedings.

Although Rule 3A(3) does not impose an absolute bar, the Court held that departure from the ordinary procedure requires exceptional circumstances.

The petitioners had pursued several proceedings after the decree, their predecessor’s Order IX Rule 13 application had been dismissed for default, the appeal was filed after an approximately ten-year delay, and the delay evidence was still being taken.

The petitioners had also sought repeated adjournments and applied for a stay while proceedings in execution were advanced.

In those circumstances, the Court found no inequity warranting exceptional intervention; it also emphasised that execution should not be stayed mechanically merely because an appeal is pending.

The petitioners had not established exceptional grounds for departing from Order XLI Rule 3A(3) CPC.

The civil revision application was dismissed, with no order as to costs.