[Cites 3, Cited by 0]
Gauhati High Court
Page No.# 1/5 vs Smt Anjana Sikaria And 2 Ors on 27 March, 2026
Page No.# 1/5
GAHC010019392026
2026:GAU-AS:4431
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/21/2026
SMTI SHREE DEVI SHARMA AND ANR
W/O SRI HRIDAY NATH SHARMA, R/O FATASIL AMBARI TINALI, (SEWALI
PATH), GUWAHATI- 25, DIST- KAMRUP (M), ASSAM, SOLE PROPRIETOR OF
PETITIONER NO 2
2: M/S VIKASH STEEL INDUSTRIES
(FORMERLY KNOWN AS MS VIKASH FURNITURE) A PROPRIETORSHIP
FIRM HAVING PLACE OF BUSINESS AT CHRISTIAN BASTI
G.S. ROAD
GUWAHATI- 5
DIST- KAMRUP (M)
ASSAM
REPRESENTED BY ITS SOLE PROPRIETOR
SMTI SHREE DEVI SHARMA @ SRIDEVI SHARM
VERSUS
SMT ANJANA SIKARIA AND 2 ORS
W/O LATE PRADIP KUMAR SIKARIA, R/O SIKARIA COMPOUND,
CHRISTIAN BASTI, G.S. ROAD, P.O AND P.S- DISPUR, GUWAHATI- 5, DIST-
KAMRUP (M), ASSAM
2:MS. PRIYA SIKARIA
D/O LATE PRADIP KUMAR SIKARIA
R/O SIKARIA COMPOUND
CHRISTIAN BASTI
G.S. ROAD
P.O AND P.S- DISPUR
GUWAHATI- 5
DIST- KAMRUP (M)
ASSAM
3:ANANT SIKARIA
S/O LATE PRADIP KUMAR SIKARIA
Page No.# 2/5
R/O SIKARIA COMPOUND
CHRISTIAN BASTI
G.S. ROAD
P.O AND P.S- DISPUR
GUWAHATI- 5
DIST- KAMRUP (M)
ASSA
Advocate for the Petitioner : MR. D NANDI, MR. A NANDI,MS P SARMAH
Advocate for the Respondent : MR B SHARMA(R1,2,3), MR. M HASSAN(R1,2,3)
BEFORE
HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI
ORDER
Date : 27.03.2026
Heard Mr. D. Nandi, learned counsel appearing for the petitioners.
Also heard Mr. B. Sharma, learned counsel appearing for the
respondents.
2. By way of the present application under Article 227 of the
Constitution of India, the petitioners assail the order dated 28.01.2026
passed in Misc. (J) Case No. 76/2026 by the learned Civil Judge
(Senior Division) No. 2, Kamrup (Metro), Guwahati, whereby the
learned first appellate court deferred consideration of the application
seeking stay of the judgment and decree of the trial court.
3. The brief facts, as discernible from the record, are that Late
Pradip Kumar Sikaria, the predecessor-in-interest of the present
respondent/substituted plaintiff, instituted Title Suit No. 46/2016
(renumbered as Title Suit No. 165/2022) seeking recovery of khas,
vacant and peaceful possession of the suit premises by ejecting the
defendants and their dependents, along with removal of their
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belongings. The suit, upon contest, came to be decreed in favour of
the respondent/plaintiff by judgment and decree dated 04.08.2025.
Aggrieved thereby, the present petitioners preferred an appeal, albeit
beyond the prescribed period of limitation, accompanied by an
application for condonation of delay of 105 days, registered as Misc.
(J) Case No. 75/2026. Alongside, an application for stay of the
impugned judgment and decree was filed, being Misc. (J) Case No.
76/2026.
4. In the meantime, the respondent initiated execution
proceedings. The stay application having been moved prior to
adjudication of the delay condonation application, the learned first
appellate court, by the impugned order dated 28.01.2026, deemed it
appropriate to keep the stay application on hold until disposal of the
delay application and accordingly posted the matter for consideration.
5. Mr. D. Nandi, learned counsel appearing for the petitioners
contends that in view of the pendency of execution proceedings,
failure to stay the operation of the impugned decree would result in
irreparable loss and injury. It is urged that the appellate court ought to
have exercised its jurisdiction to grant interim protection, relying on
the decision in Ramesh Chandra Kalita vs. Mira Patowari and
Ors., reported in (1997) 1 GLR 287.
6. Per contra, Mr. B. Sharma, learned counsel appearing for the
respondents, submits that the impugned order is purely interlocutory
in nature and does not suffer from any jurisdictional infirmity. It is
contended that the power to grant stay prior to condonation of delay is
not a matter of right, but rests in the discretion of the court, to be
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exercised only in exceptional circumstances. It is further submitted
that no such exceptional circumstance has been demonstrated in the
present case, and therefore, no interference is warranted in exercise of
supervisory jurisdiction under Article 227 of the Constitution.
7. I have considered the submissions advanced by the learned
counsel for the parties and have perused the materials on record.
8. Order XLI Rule 3A of the Code of Civil Procedure prescribes the
procedure to be followed where an appeal is presented beyond the
prescribed period of limitation. Sub-rule (3) thereof, in clear terms,
provides that where such an appeal is accompanied by an application
for condonation of delay, the court shall not ordinarily grant stay of
execution of the decree unless, upon consideration under Rule 11, it
decides to entertain the appeal.
9. The statutory scheme thus makes it evident that consideration of
the application for condonation of delay is a foundational requirement,
and the question of grant of stay is consequential thereto. The
sequencing contemplated under the provision is neither incidental nor
procedural formality, but integral to the orderly exercise of appellate
jurisdiction.
10. In the present case, it is an admitted position that the appeal is
delayed by about 105 days and the application for condonation of
delay remains pending adjudication. In such circumstances, the
learned first appellate court, in its discretion, considered it appropriate
to defer the stay application until the question of delay is first decided.
11. The decision in Ramesh Chandra Kalita (supra), relied upon
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by the petitioners, does not lay down any absolute proposition. On the
contrary, it recognizes that while Order XLI Rule 3A(3) ordinarily
governs the field, in rare and exceptional circumstances, the court may
invoke its inherent jurisdiction under Section 151 CPC to grant
appropriate interim protection to prevent manifest injustice.
12. Thus, the said decision carves out only a narrow exception and
does not dilute the general rule. The existence of exceptional
circumstances is a sine qua non for invoking such inherent powers.
13. In the present case, the learned first appellate court, upon
consideration of the facts, has not found any such exceptional
circumstance warranting deviation from the statutory scheme. The
discretion exercised, therefore, cannot be said to be arbitrary,
perverse, or suffering from any jurisdictional error.
14. In exercise of supervisory jurisdiction under Article 227 of the
Constitution, interference is warranted only where there is patent
illegality, jurisdictional error, or manifest perversity. None of these
grounds are made out in the present case.
15. Accordingly, I find no infirmity in the impugned order passed by
the learned first appellate court.
16. The civil revision petition stands dismissed. No order as to costs.
17. The learned first appellate court is, however, directed to dispose
of the pending applications expeditiously, in accordance with law.
JUDGE
Comparing Assistant
