Shri.Reyaz Ahmed And ANR v. Smti. Krishna Saha And ORS.
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** CO/78/2025 Shri. Reyaz Ahmed and Another Vs.
Smti. Krishna Saha and Others Mr. KMB Jayapal .... for the petitioner December 11, 2025 [SR] Item No. 7 This application under Article 227 of the Constitution of India is at the instance of the 3rd and 5th defendants and is directed against the order No.41 dated November 19, 2025 passed by learned Civil Judge (Junior Division), Additional Court, Port Blair South Andaman in Other Execution Case No.02 of 2020. By the order impugned, the judgment debtor was given a final opportunity to bring any stay order from the higher forum.
Challenging the judgment and decree dated January 21, 2020 passed by the learned Civil Judge (Junior Division), Additional Court, Port Blair in Title Suit No.11 of 2010, the 3rd and 5th defendants preferred Title Appeals being T.A. No. 14 and 16 of 2020.
Since both the appeals were filed beyond the statutory period of limitation, the same were accompanied by applications under section 5 of the Limitation Act. During the pendency of the said appeals the sole plaintiff who was impleaded as the first respondent in the aforesaid Title Appeals left for heavenly abode.
It is not in dispute that the appellant in the aforesaid Title Appeals did not file any application for substitution of the heirs of the deceased plaintiff within the statutory period of limitation before the learned First Appellate Court.
Mr. Jayapal, learned advocate appearing for the petitioner submits that the heirs of the deceased plaintiff filed applications for being substituted in place and stead of the deceased plaintiff/respondent in the aforesaid Title Appeals. He further submits that said substitution applications are still pending before the learned First Appellate Court. Mr. Jayapal, submits that unless an order of stay of further proceeding of Title Execution case is passed and the possession is recovered from the petitioner by executing the decree passed in the suit, the appeals would become infructuous and the petitioners will suffer irreparable loss and injury.
However, the fact remains that the appeals were filed beyond the statutory period of limitation and the same were accompanied applications under section 5 of the Limitation Act. Till the delay in preferring the appeals are condoned, there is no existence of an appeal in the eye of law.
Order XLI Rule 3-A(1) states that when an 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. Sub-Rule (3) of Rule
3-A of Order XLI states that 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.
As observed hereinbefore, the application for condonation of delay is yet to be allowed. That apart the sole plaintiff died and no step for substitution was taken by the appellant within the stipulated period of limitation. Thus, in view of provisions laid down under Order XLI Rule 3-A(3) of the Code of Civil Procedure, this Court is not inclined to pass any order of stay of further proceeding of the execution case at this stage. Faced with such situation, learned advocate appearing for the petitioner submits that a direction be passed upon the learned District Judge to dispose of the applications for substitution and the applications for condonation of delay in preferring the appeals as well as an applications under Order XLI Rule 5 of the Code of Civil Procedure expeditiously. He submits that tomorrow (i.e.12.12.
2025) is the date fixed before the learned District Judge in the aforesaid Title Appeals. In view of the relief sought for and proposed to be passed, this Court feels that there is no necessity to issue any notice upon the opposite parties.
before the learned District Judge in the aforesaid two appeals forthwith.
In the light of the submission made by Mr. Jayapal, CO/78/2025 stands disposed of by requesting the learned District Judge, Andaman and Nicobar Islands at Port Blair to take up the hearing of the pending applications namely the applications for substitution filed by the legal representatives or of the deceased plaintiff; the applications for condonation of delay in preferring the Title Appeals and the applications under Order XLI Rule 5 of the Code of Civil Procedure on the next date, if the same are otherwise ready for hearing and to make an endeavor to dispose of such applications as expeditiously as possible without granting any unnecessary adjournment to either of the parties.
With the aforesaid observations and direction, CO/78/2025 stands disposed of.
Parties to act on the server copy of this order downloaded from the official website of this Court.
( Hiranmay Bhattacharyya, J. )