ORDER
P.K. Misra, J.
1. This is an application for stay filed by the appellant. The appeal is admittedly barred by limitation. Application for condonation of delay has been filed and by order dated 12.7.1999 notice has been directed to be issued on the question of limitation. Notwithstanding the fact that the delay is yet to be condoned and the appeal is yet to be admitted, the learned counsel for the appellant has filed this application for stay. The question as to whether the stay can be granted even though delay is yet to be condoned and the appeal is yet to be admitted has been heard on several dates.
2. Order 41, Rule 3-A which is a new provision was inserted in the Code of Civil Procedure, 1908 (hereinafter referred to as the “C.P.C.”) by amending Act 104 of 1976. Order 41, Rule 3-A, C.P.C. reads as follows:
“3-A. Application for condonation of delay – (1) 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.
(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 mater 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.”
3. Sri K. B. Kar, the learned counsel appearing for the appellant has submitted that it has already been held in the decision of this Court reported in 1995 (I) OLR 634 (Rajkumar Jindal v. Orissa Forest Corporation and Anr.) that the provisions contained in Sub-rule (1) of Rule 3-A of Order 41, C.P.C. are directory in nature. A reading of the aforesaid decision makes it clear that the failure of the appellant to file an application for codonation of delay along with the appeal may not be fatal and the Court may permit the appellant to file such an application at a subsequent stage. The question raised in the present case is different. The question as to whether a stay can be granted in a time barred appeal did not arise for consideration in the said case. The learned counsel for the appellant has, however, relied upon a decision of the Calcutta High Court reported in 1978 (2) CLJ 462 (Ram Ch. Sinha v. Sm. Protiva Dutta), where it is held that notwithstanding the provisions in Order 41, Rule 3-A, C.P.C, the Court under its inherent power can grant stay. With respect, I am unable to agree with such view expressed by the learned Single Judge of the Calcutta High Court. The learned Single Judge of the Calcutta High Court has relied upon a decision of the Supreme Court reported in AIR 1962 SC 527 (Mohanlal v. Seth Hiralal) to come to a conclusion that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as would be necessary for the ends of justice and passed an order of stay before condonation of delay on the ground that the appeal would become infructuous if the execution was not stayed. No appeal ever becomes infructuous merely because the impugned decree or order has been executed before the appeal is decided on merit. Section 144, C.P.C, providing for restitution is meant to avert such a contingency. Moreover, the learned Judge has failed to take note of the fact that it is well settled by a catena of Supreme Court decisions that where a specific provision has been made in the Code to cover a specific situation, the Court cannot fall back upon Section 151, C.P.C, to exercise inherent power. As a matter of fact in AIR 1962 SC 527 itself it had been pointed out that where there is a specific provision in the Code for dealing with a particular contingency, exercise of power under Section 151, C.P.C. has no justification. In AIR 1966 SC 1899 : (M/s. Ram Chand and Sons Sugar Mills P. Ltd. v. Kanhayalal Bhargava) it was observed :
“……The inherent power of a Court is in adition to and compelenlary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with or comes into conflict with any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions……”
In AIR 1970 SC 997 (Nainsingh v. Koonwarjee and Ors.) it was observed :
“…….The High Court has misconceived the scope of its inherent powers. Under the inherent powers of Courts recognised by Section 151. Civil Procedure Code, a Court has no power to do that which is prohibited by the Code……”
All the aforesaid decisions as well as several other decisions of Supreme Court and other High Courts were noticed by the Full Bench of this Court in 50(1980) CUT 419 : (E.I.D. Parry Limited v. M/s. Agro Sales and Service and Ors.) and it was observed :
“6. The principles that once statutory provision has been made to cover a given field, application of inherent powers would stand regulated and in case statutory law covers the entire field, application of inherent powers would stand excluded appear to have been well recognised…..”
Similar view has been expressed by another Full Bench of this Court reported in 76 (1993) CLT 517 (Sambhu Prasad v. Kailash Chandra Das and Ors.) of course in a different context.
4. In the present case, a specific provision has been made in Sub- rule (3) of Rule 3-A of Order 41,. C.P.C., prohibiting the Court from making any order of stay of execution of the decree until the appeal is admitted for hearing under Order 41, Rule 11, C.P.C. In Sub-rule (2) of Rule 3-A of Order 41, C.P.C. it has been provided that the question of limitation has to be decided after issuing notice to the respondent and to be finally decided by the Court before the Court proceeds to deal with the appeal under Order 41, Rule 11, C.P.C. In view of the provisions contained in Order 41, Rule 3-A(3), C.P.C. it cannot be said that the Court still possesses inherent power to grant stay even before condonation of delay. Since there is a specific bar in the Code, such power may not be overcome by falling back upon Section 151, C.P.C.
5. The learned counsel appearing for the appellant has submitted that in the decision reported in 1984 (I) OLR 819 (Ainthu Charan Parida v. Sitaram Jayanarayan Firm, represented by Ramnibas and Anr.) the question as to whether the provision contained in Order 41, Rule 3-A(1) was mandatory or directory was considered and it was held that such provision was directory. A perusal of the said decision clearly indicates that the question as to whether Order 41, Rule 3-A(3) is mandatory or not was specifically left open in the said case. There is nothing in the aforesaid Full Bench decision which suggests that a Court can invoke exercise power Under Section 151, C.P.C. and grant stay in spite of the specific prohibition contained in Order 41, Rule 3-A(3), C.P.C. The learned .counsel for the appellant has relied upon the decision of this Court reported in 1979(1) C.W.R. 45 (Nilamani Nayak v. Ramkrushna Swain Mohapatra). In that case the question was relating to grant of stay in a proceeding for restoration. It was stated that such a contingency had not been contemplated in the Code and as such, the Court can invoke the jurisdiction under Section 151, C.P.C, to grant stay. I do not find any authority in the said decision for the proposition that though there is a specific prohibition contained in the Code, the Court can invoke Section 151 and exercise inherent power to grant stay.
6. Similar prohibition is contained in Section 74(3) of the Onssa Hindu Religious Endowments Act which prescribes the appeal to Court from staying the operation of the order of the Commissioner. The said provision contained in Section 74(3) has been held to be binding on numerous occasions and it is never suggested that in spite of such prohibition a Court hearing appeal under the Orissa Hindu Religious Endowments Act has inherent power to grant stay.
For the aforesaid reasons, I am unable to pass any order of slay before condonation of delay. However, since notice has been issued on the question of limitation, the present petition for stay is left to be considered at the stage of admission of the appeal after condonation of delay.
I must place on recod my appreciation for the sincere efforts of Sri K.B. Kar, the learned counsel for the appellant.