1. On the 20th of Jan., 1983, on an application filed by Durgaprosad Jhunjhunwalla and Ors., under Section 5 of the Limitation Act for condonation of delay in preferring an appeal against the order for temporary injunction passed by the learned Judge of the City Civil Court in T. S. No. 2301/1982 (Shyam Sundar Jhunjhunwalla and Ors. v. Durgaprosad Jhunjhunwalla and Ors.) and on another application filed on the same day for delay of operation of the aforesaid order of temporary injunction, being Order No. 4 dated 7-12-82, a Rule was issued and an interim order was passed by this Court staying operation of the order dated 7-12-82 passed by the learned Judge, 11th Bench of the City Civil Court and all proceedings relating thereto. The order was as follows:--
"There will be an interim order staying operation of the order dated December 7, 1982 passed by the Judge, 11th Bench, City Civil Court at Calcutta in T. S. No. 2301/82 and all proceeding relating thereto till the 14th of February, 1983 with liberty to the petitioners to have the same extended upon prior notice to the Respondents."
2. In the order that was passed on the 7th of December, 1982 an interim injunction was granted in terms of prayers (a) & (b) of the application filed by the opposite parties in this Rule (Plaintiffs in the suit before the City Civil Court) and the said learned Judge passed orders by issuance of a temporary injunction restraining the defendants Nos. 1 and 2 (petitioners herein) from taking part in the management of the Society or from managing, alienating, selling or encumbering or in way dealing with the assets, properties and/ or moneys belonging to the Society and/ or from removing, destroying, taking away or keeping in their custody an account book, register, deeds, documents, papers concerning or relating to the said Society until the disposal of the suit.
3. The learned Judge of the City Civil Court further ordered that the defendants would be called upon to show cause why the ad interim order should not be made absolute and fixed the date on the 5th of Jan, 1983 for further orders.
4. The appellants-petitioners now pray for extending the order for stay passed by this Court on the 20th of Jan. 1983.
5. Mr. Dipankar Gupta, appearing on behalf of the petitioners, submitted for extending the order for stay passed by this Court and argued that refusal to grant the stay would render the entire application infructuous. Mr. Gupta argued that when an application under Section 5 of the Limitation Act is pending, the Court is in seisin of the matter and as such, if the Court considers it expedient it can grant the stay for the ends of justice.
6. Mr. A. P. Chatterjee, on behalf of the opposite parties, argued that as no order has been passed on the application for condonation of delay, the appeal is non est and no order can be passed on the application made for stay of the order appealed against. Mr. Chatterjee contended that until the application for condonation of delay is disposed of in favour of the applicants, no order can be passed on the present application as in the eye of law no appeal is there. Mr. Chatterjee referred to a decision of a Full Bench of this Court in the case of Mamuda Khateen v. Beniyan Bibi. . In the said decision it has been observed (at page 416) :--
"It seems to us that when an appeal is barred by limitation and an application is made under Section 5 of the Limitation Act for condonation of delay along with the Memorandum of Appeal, until the application under Section 5 is allowed, the appeal cannot be filed or admitted at all In other words, till a favourable order is made on the application under Section 5 the appeal is non est."
7. Mr. Chatterjee strongly relies on this passage and contends that as the delay has not yet been condoned, no order can be passed by this Court on the application for stay, in an appeal which does not exist. He also relies upon the provisions of Order 41. Rule 3A and Order 41, Rule 3A (3) of the C. P. C. in support of his contention that no order can be passed by this Court till the appeal is admitted after condonation of delay. He also draws our attention to the provisions of Order 43, Rule 2 of the Code of Civil Procedure to contend that the Rules of Order 41 shall apply to appeals from orders.
8. Mr. Gupta argues that Order 41, Rule 5 does not operate as a bar to an ex parte order of stay. He has also drawn our attention to the words "so far as may be" in Order 43, Rule 2 of the C. P. C. His contention is that in case of an appeal, especially from an order, there cannot be an absolute bar for the applicant to ask for a stay before condonation of delay is granted, as the provision is still there for the appellate court for ordering stay of execution on sufficient cause. Mr. Gupta has also drawn our attention that the opposite parties have not filed any affidavit in answer to their petition. So far as the application for condonation of delay is concerned, he submits that notice has been served on the parties and the matter is ready for hearing. Mr. Gupta asserts that for the ends of justice, the stay prayed for, should be granted and the application for condonation of delay may be heard as quick-
ly as possible; otherwise the entire application would be rendered nugatory.
9. The provisions of Order 41, Rule 3A provide that the Court shall not make an order for stay in execution of a decree against which an appeal is proposed to be filed. It may be noted that the decree determines the rights of the parties with regard to all or any of the matters in controversy in the suit. "Order" is the formal expression of any decision of a civil suit. Therefore, the incidence or legal consequences of a decree fundamentally differ from those of an order. That must be the one of the reasons why in Order 43, Rule 2 the words "so far as may be" have been incorporated.
10. So, in case of an order that is interlocutory in nature, that can be stayed for an interim period if the justice of the case so demands, so provided an application , for condonation of delay is there.
11. It may be noted further that Order 43, Rule 2 of the C. P. C. relates to procedural matters and matters relating to grant or refusal of stay cannot be said to be procedural matters by any sense of the term. Moreover, the Full Bench decision referred to above, is not applicable to this case. In that case the application under Section 5 of the Limitation Act was rejected. In the present case it is pending.
12. Mr. Gupta has cited a judgment in the case of Ram Ch. Sinha v. Sm. Protiva Dutta, reported in (1978) 2 Cal LJ 462. Justice Nag in that case held that the provisions of Section 151 of the Code of Civil Procedure provide that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the court to make necessary orders for the ends of justice. She observed, the inherent power has not been conferred upon the court, it is a power inherent in the court by virtue of its duty to do justice between the parties before it.
13. We concur with the observations made by Justice Nag referred to above. Irrespective of the provisions of Section 151 of the C. P. C. we however can grant limited stay and Rule 3A will not stand as a bar in view of the fact that Order 41, Rule 3A of the C. P. C. cannot apply in case of an order by virtue of Order 43, Rule 2 which enjoins application of the Rules of Order 41 in the matters of procedure and that also "so far as may be."
14. Hearing the rival contentions of Mr. Chatterji and Mr. Gupta, we are of the opinion that the judgment referred to by Mr. Chatterjee does not apply in the present case. In the Full Bench judgment the application for condonation of delay was rejected and as such automatically the memorandum of appeal lapsed. But here, in the instant case, the application is still pending and as such the Court is still in seisin of the matter. If the Court vacates the order for stay, the whole appeal becomes infructuous even if the application for condonation of delay is granted hereafter. The interim order is therefore extended till the disposal of the rule arising out of the application for condonation of delay.
There will be no order as to costs.
P.C. Borooah, J.
15. I agree.