The provisions of Rule 328 of the J&K Motor Vehicles Rules, 1991 makes it amply clear as to how the provisions of Order XLI of the Code of Civil Procedure, 1908 apply to appeals under Section 173 of the Motor Vehicles Act, 1988. 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.

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 sub-section (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:
   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.
   
   Referring to the above Section, it is submitted that Section 173 (1) of the Motor Vehicles Act, 1988 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.
   
   The Motor Vehicles Act, 1988 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 328 of the J&K Motor Vehicles Rules, 1991, which makes it clear that the provisions of Order XXI and Order XLI in the First Schedule to the Code of Civil Procedure, 1908 shall apply to appeals preferred to the High Court under Section 173 of the Motor Vehicles Act, 1988.

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 sub-rule (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.

The important and substantial 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, 1908 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)?

The above-mentioned important and substantial question recorded raises certain further questions:

1. Whether the prohibition enacted by the words "shall not make order of stay of execution" in Rule 3-A (3) is mandatory.
2. 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.
3. Whether the Court can resort to its inherent powers to prevent the failure of justice by granting interim stay notwithstanding the aforementioned prohibition.

Order XLI of Code of Civil Procedure, 1908 has the caption "Appeals from original decrees", Section 96 of the Code of Civil Procedure, 1908 creates a right of appeal from "every decree passed by any Court of original jurisdiction". Section 104 of the Code of Civil Procedure, 1908 creates a right of appeal against the Orders specified therein and those specified in Order 43 of the Code of Civil Procedure, 1908.

The Scheme of Order XLI Rule 3-A of the Code of Civil Procedure, 1908 as under:
Where an appellant presents an appeal which is barred by law of limitation, it shall be accompanied by an application for condonation of delay supported by an affidavit setting forth facts with a view to satisfying the Court that he had sufficient cause for not preferring the appeal within time.

The Court is then called upon to consider the merits of this application without issuing notice to the respondent. If the Court finds that the grounds are untenable no notice need be issued to the respondent on such application. If the Court thinks fit, it may issue notice to the respondent.

The respondent then appears. After hearing both the parties the Court is required to dispose of the application for condonation of delay but it shall do so "before it proceeds to deal with the appeal under Rule 11 or Rule 13 as the case may be". Rule 11 empowers the Court to examine the merits of the case in the appeal. It has two options. It may dismiss the appeal without notice to the respondent and to the Court from whose decree is appealed from.

If it finds that the appeal raises questions required to be heard after notice to the respondents, it may "admit" the appeal and issue notice to the respondent. But the thrust of the rule is that the Court shall finally decide the application for condonation of delay before considering the merits of the appeal under Rule 11. In other words, it shall not postpone the consideration of the question of limitation beyond the date on which it decides to hear appeal under Rule 11.

Then the Legislature goes on to provide that the Court shall not stay the execution of the decree "so long as the Court does not" decide to admit or dismiss the appeal. Thus, Rule 3-A creates an obligation on the litigant to make application to condone delay and enjoins Court not to postpone condonation of delay beyond the stage of admission. In other words, condonation of the delay or refusal to condone the delay must precede the admissions of the appeal.

Rule 3-A was introduced for the first time by Act 104 of 1976. Before 1976, appeal barred by the law of limitation were filed and applications for condonation of delay were made under Section 5 of the Limitation Act. The Privy Council disapproved the practice of courts in India of admitting appeals "subject to the provisions as to limitation being raised at the time of hearing". This provided the impetus to the legislative enactment of Rule 3-A.

The Appellate Court is empowered to stay execution of the decrees appealed from by Rule 5 of Order XLI. Rule 3-A thus, enacts a limitation on the power of the Appellate Court to grant stay of execution of decrees in appeals barred by limitation. Rule 5 (2) enacts the power of the trial Court to stay its own decree which is likely to be appealed from. It reads:
"Where an application is made for stay of execution of an appealable decree, before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may, on sufficient cause being shown order the execution to be stayed".

There is no restriction on the power of the trial Court to stay the execution of its decree which may extend beyond the period of limitation prescribed for appeal. The only restriction is that the application for stay to the trial Court must be made " before the expiration of the time allowed for appealing therefrom".

Another amendment introduced by the Amending Act 104 of 1976 is in Rule 5 of Order XLI of the Code of Civil Procedure, 1908 which occurs under caption "Stay of proceedings and of execution". Sub-rule (4) empowers the Appellate Court to make ex parte orders of stay of execution of decrees. The Amending Act 104 qualifies this power by introducing the words "Subject to the provision of sub rule (3)" thereby making it obligatory on the Court that the grounds stated in sub-rule (3) existed before making the ex parte order.

Clause 87 (ii) thus reads as under:
"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".

Thereafter, it summarized the following facts appearing from statement of objects and reasons as under:

1. 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.
2. 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.
3. 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 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.].

Therefore, 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.

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 and relying upon the decisions of Bumbay High Court in the case of ["N. Dasgupta Vs. Prakash K. Shah", AIR 1984 Bombay 390] as well as the decision of the Hon'ble Supreme Court of India in the case of ["Govindlal Chaganlal Patel Vs. APMC Godhra & Ors", 1975 (2) SCC 482] as well as the Scheme of Order XLI Rule 3-A of Code of Civil Procedure, 1908 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.

It is thus apparent that in Rule 3-A (3) the reference is to the "proposed appeal" and not to appeal. Rule 1 of Order XLI of Code of Civil Procedure, 1908 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.

A plain reading of sub-Rules 3-A (1) and (3) of Code of Civil Procedure, 1908 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 filed, so long as the Court does not after hearing under Rule 11 decide to hear the appeal.

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. 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. 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.

The word "shall" used in Order XLI Rule 3-A (3) is directory and not mandatory. Refering to the famous quotation from the decision by Justice V. R. Krishna Iyer in the case of [The State of Punjab & Anr. Vs. Shamlal Murari & Anr.", 1976 (1) SCC 719] holding 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".

The Bombay High Court in [Shaikh Ibrahim Janmohammad Vs. Tekchand Alias Ravindra FakirchandRathod, Civil Revision Application No. 723 of 1985 dated 23rd October, 1986] held that the word "shall" be construed as "may" in the interest of justice while relying upon the decision of the Gujarat High Court in the case of ["Naran Annappa Shethi Vs. Jayantilal Chunilal Shah", 1986 Guj. L. R. 226].

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 Vs. 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 staythe 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"

Recently The Bombay High Court in Civil Application No.655 OF 2018 (Delay) AND Civil Application No. 656 OF 2018 (Stay) In First Appeal (S.T.) No. 25979 Of 2017 titled [Shriram General Insurance Company Limited Vs Sou. Jyoti Vithoba Nahire and Anr], held that the interpretation of Rule 3-A (3) of Order XLI of the CPC should be permissive rather than mandatory.

his ruling affirmed that the Court has the discretion to grant interim stays in appeals filed after the time limit, even while applications for condonation of delay are pending. The applicants were seeking a stay of the implementation and execution of Awards issued by the Motor Accident Claims Tribunals. An issue arose regarding the interpretation of Rule 3-A (3) of Order XLI of the Code of Civil Procedure, 1908 questioning whether it was mandatory or permissive.

A Bench of Justice Abhay Ahuja held:
"Ergo, considering the authoritative pronouncement of a Division Bench of this Court in the case of [Bhagwan Ganpatrao Godsay Vs. Kachrulal Bastimal Samdariya & connected matt 1987 (2) BomCR 153], 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."

The Court noted that earlier High Court had interpreted Rule 3-A (3) as permissive, allowing the court to grant interim stays in cases where appeals are filed after the time limit, even while applications for condonation of delay are pending. This interpretation was based on the idea that a strict, mandatory interpretation could render the appeal infructuous, defeating the purpose of the rule. The court's decision to interpret "shall" in Rule 3-A (3) as permissive aligned with the objective of expediting the disposal of delay condonation applications and ensuring they serve the remedy of appeal. The Court believed that a strict interpretation could hinder justice and procedural fairness.

The Court concluded that it has the discretion to grant interim stays in time-barred appeals pending the decision on the delay condonation application. The Court thus held that, "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."

The whole object of bringing in Rule 3-A in Order XLI of the Code of Civil Procedure, 1908 was to ensure that the Courts do not admit appeals and post-pone 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

Written By: Dinesh Singh Chauhan, Advocate, High Court of Judicature, Jammu.
Email: [email protected], [email protected]