GOUSE BI Vs. SALIMA BI

JUDGEMENT

(1.) THE petitioner herein, Gouse Bi, was the 1st defendant in O. S. 703 of 1964 on the file of the City Civil Court, Madras. It was a suit for partition. A decree was passed on 8-9-1969, overruling a contention of hers that some property belonged to her absolutely as Mahar. She filed a memorandum of appeal to this court, but, since, it was out of time, she filed a petition, CMP No. 719 of 1972, under Section 5 of the Limitation Act, to excuse the delay in filing the appeal. Pending disposal of cmp No. 719 of 1972, she has filed CMP No. 8236 of 1973 for stay of further proceedings in O. S. 703 of 1964 on the file of the City Civil Court, Madras.

(2.) SO far as we are aware, till recently, the uniform practice of this court has been to grant interim stay, if the court felt that it would be expedient to grant stay, and notice would be ordered of the interim stay along with the notice in the application under Section 5 of the Limitation Act. But in a recent decision in C. M. P. No. 6420 of 1973, Paul, J. , has decided that till the delay is excused under Section 5 of the limitation Act, the court cannot be said to cannot pass any interlocutory orders. The office therefore returned the petition C. M. P. 8236 of 1973, drawing the attention of the petitioner to the said decision of Paul, J. , and asking her how in view of that decision the present petition is maintainable. The point has been argued before us by the petitioner's learned Counsel Mr. Hariharan. He contends that the decision of Paul, J. , is wrong and that this court has jurisdiction to grant stay if it thinks fit to do so on merits.

(3.) AS we observed, so far as we are aware, it had been the uniform practice of this court, till the decision of Paul, J. , to grant interim stay, if the court thought fit to do so. However, since Paul, J. , has decided otherwise, it is necessary to go into the matter fully. Paul, J. , has relied on the decision of the Travancore High Court in Ramayyan v. Ashtamoorthi Namboodri, 1962 Ker LT 500 = (1962 Ker LJ 681), which is cited in mulla's C. P. Code, under Order XLI, Rule 1, as authority for the following commentary-