# Balvir Singh v. Vijay Pal and others

- **Citation:** (2011) 2 ILRA 873
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-07-14
- **Case number:** Civil Misc. Writ Petition No. 37564 of 2011
- **Bench:** B.K. Narayana
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/balvir-singh-v-vijay-pal-and-others-41987
- **Pages:** 3

## Headnote

Code of Civil Procedure-Order XLI Rule 3
A-Appeal-without application to condone
the delay of 16 days with affidavit fieldlearned judge not only entertain the
appeal
but
passed
interim
order
admitting-without consideration of the
provisions of Order XLI Rule 3 A-held-not
sustainable.

Held: Para 8

What follows from the reading of Order
XLI Rule 3A is that when an appeal is
presented
after
the
expiry
of
the
limitation, it shall be accompanied by an
application supported by an affidavit
stating the facts on which the appellant
relies to satisfy the court that there was
sufficient cause for not preferring the
appeal within the said period. Unless and
until the said application is allowed no
competent appeal can be said to be
pending before the concerned appellate
court and till the delay in filing the
appeal is condoned the appellate court
has no power to make an order for
staying the execution of the decree
which is appealed against.

## Text

2 All] Balvir Singh V. Vijay Pal and others
873
this writ petition. The writ petition lacks
merit and is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2011

BEFORE
THE HON'BLE B.K. NARAYANA,J.

Civil Misc. Writ Petition No. 37564 of 2011

Balvir Singh

 ...Petitioner
Versus
Vijay Pal and others
 ...Respondents

Counsel for the Petitioner:
Sri Pankaj Agrawal

Counsel for the Respondents:
Sri Anil Singh Jadaun
Dr. G.S.D. Mishra

Code of Civil Procedure-Order XLI Rule 3
A-Appeal-without application to condone
the delay of 16 days with affidavit fieldlearned judge not only entertain the
appeal
but
passed
interim
order
admitting-without consideration of the
provisions of Order XLI Rule 3 A-held-not
sustainable.

Held: Para 8

What follows from the reading of Order
XLI Rule 3A is that when an appeal is
presented
after
the
expiry
of
the
limitation, it shall be accompanied by an
application supported by an affidavit
stating the facts on which the appellant
relies to satisfy the court that there was
sufficient cause for not preferring the
appeal within the said period. Unless and
until the said application is allowed no
competent appeal can be said to be
pending before the concerned appellate
court and till the delay in filing the
appeal is condoned the appellate court
has no power to make an order for
staying the execution of the decree
which is appealed against.
(Delivered by Hon'ble B.K.Narayana,J.)

1. Heard learned counsel for the
petitioner and Dr. G.S.D. Mishra for the
contesting respondents.

2. Since the facts of the case are not in
dispute, this writ petition is finally disposed
of at this stage without calling of any
counter affidavit.

3. The brief facts of the case are that
the petitioner filed Original Suit No.362 of
2008 in the court of Civil Judge (Junior
Division) against the defendant-respondent
nos.6 to 9 for cancellation of will dated
27.11.1982 allegedly executed by one Late
Roop Singh in favour of defendantrespondent nos.6 to 9. The said suit was
decreed by learned Civil Judge (Junior
Division) by his judgment and decree dated
8.2.2000. It appears that against the
judgment and decree passed by the trial
court the respondent nos.1 to 5 filed an
appeal under Section 96 of Code of Civil
Procedure before the District Judge, Aligarh
on 26.3.2010 which was reported to be
beyond time by 16 days on 26.3.2010. It is
not disputed that the memorandum of
appeal was not accompanied by any
application
under
Section
5
of
the
Limitation Act for condonation of delay yet
the learned District Judge by his impugned
order dated 6.5.2011 not only admitted the
aforesaid appeal but also passed an interim
order in favour of respondent nos.1 to 5 on
the same day staying the execution of the
impugned decree.

4. Learned counsel for the petitioner
submitted that impugned order is clearly hit
by the provisions of Order XLI Rule 3A of
Code of Civil Procedure. He further
submitted that since the appeal against the
judgment and decree of the trial court was
874 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
filed by the respondent nos.1 to 5 after the
expiry of prescribed period of limitation, the
respondent nos.1 to 5 were required to file
an application for condonation of delay and
unless the delay in filing the appeal was
condoned the appellate court had no power
to stay the execution of the decree against
which the appeal had been preferred.

5. Learned counsel for the respondent
nos.1 to 5 made his submissions in support
of the impugned order.

6. After having considered the
submissions made by the learned counsel
for the parties present and perused the
impugned order as well as other materials
brought on record, I find that there is force
in the submissions made by learned counsel
for the petitioner and the same are liable to
be accepted.

7. There is no dispute about the fact
that Civil Appeal No.79 of 2011 which was
filed by the respondent nos.1 to 5 against
the judgment and decree of the trial court
dated 8.2.2010 on 26.3.2010 was reported
to be beyond time by sixteen days on the
said date. There is also no dispute about the
fact that memorandum of appeal was not
accompanied
by
any
application
for
condoantion of delay. Order XLI Rul0.79"e
3A of C.P.C. which is relevant for the
purpose reads as under:-

"3A. Application for condonation of
delay.--(1) When an appeal is presented
after the expiry of the period of limitation
specified therefore, 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 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."

8. What follows from the reading of
Order XLI Rule 3A is that when an appeal
is presented after the expiry of the
limitation, it shall be accompanied by an
application supported by an affidavit stating
the facts on which the appellant relies to
satisfy the court that there was sufficient
cause for not preferring the appeal within
the said period. Unless and until the said
application is allowed no competent appeal
can be said to be pending before the
concerned appellate court and till the delay
in filing the appeal is condoned the
appellate court has no power to make an
order for staying the execution of the decree
which is appealed against.

9. Learned District Judge in the
present case has very strangely by the
impugned order not only admitted the
defective appeal filed by the respondent
nos.1 to 5 before him but he also passed an
interim order in their favour staying the
execution of the judgment and decree which
was impugned before him.

10. In this view of the matter the
impugned order can not be sustained and is
liable to be set-aside. The writ petition is
2 All] Om Prakash Mishra V. Union of India and others
875
allowed. The order dated 6.5.2011 passed
by District Judge, Aligarh in Civil Appeal
No.79 of 2011 (Annexure No.5 to the writ
petition) is hereby quashed.

11. This order will not preclude the
respondent nos.1 to 5 from filing an
application for condonation of delay in the
appeal which has been preferred by them
before the District Judge against the
judgment and decree 8.2.2010 and in case
any delay condonation application is filed
the same shall be dealt with by the court
concerned in accordance with law.

12. Copy of this order shall be
supplied to learned counsel for the
petitioner within three days on payment of
usual charges.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.07.2011

BEFORE
THE HON'BLE VINEET SARAN,J.
THE HON'BLE RAN VIJAI SINGH,J.

Civil Misc. Writ Petition No. 39628 of 2011

Om Prakash Mishra

 ...Petitioner
Versus
Union of India Thru G.M.,N.Railway,New
Delhi and others
 ... Respondents

Counsel for the Petitioner:
Sri Santosh Mishra

Counsel for the Resapondents:
Sri Sudhir Bharti (S.C. -N.R.)
C.S.C.

Constitution
of
India-Article
226Restoration Application along with delay
condonation
Application
rejected
by
Tribunal-on
pertext
no
ground
for
interference made out-held Court or
Tribunal are known for imparting justice
and not to shut the door of Justice on
technicality-Tribunal
committed
great
error by ignoring the guide line issued by
the
Apex
Court-reason
for
non
appearance disclosed-could not markcause shown sufficient-delay condonedrestoration allowed-direction to decide
the original application on merit.

Held: Para 10

Looking
into
the
object
of
the
establishment of the courts/tribunals
which
are
meant
and
known
for
imparting substantial justice to the
parties,we find that the cause shown for
non
appearance
was
sufficient
to
condone
the
delay
in
filing
the
restoration application as well as to
recall the order dated 10.03.2008 and
the Tribunal in not doing so has failed to
consider
the
very
purpose
of
the
establishment of the court/tribunal and
by passing the impugned order has shut
down
the
door
of
justice
on
technicalities,
therefore,
we
cannot
approve such an order.
Case law discussed:
(JT 1987 (1) SC 537=1987 (2) SCR 387; 1978
ARC 496; JT 2000 (5) 389

(Delivered by Hon'ble Vineet Saran,J. )

1. Heard counsel for the petitioner as
well as Sri Sudhir Bharti learned counsel
for all the respondents. With the consent
of learned counsel for the parties, this
petition is being finally disposed of at this
stage without calling for counter affidavit.

2. The case of the petitioner is that
O.A.No. 557 of 2004 was pending before
the Central Administrative Tribunal. On
10.03.2008 the said O.A. was dismissed
in default as the counsel for the petitioner
could not appear. The petitioner thereafter
filed an application for recalling of the
said order on 02.03.2011 along with an
application for condonation of delay