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Scanned Judgements…!
The application for stay can be rejected if the appeal is filed after the expiry of the limitation period or if the court finds no substantial reason to stay execution ["Godavarthi Surya Kumari VS Godavarthi Savithri - Andhra Pradesh"], ["M. Nageshwar Rao (died) VS M. A. Samad - Telangana"], ["Uday Narayan Singh VS Most. Sheela Devi - Patna"], ["Radha Rani Das vs Ashish Mazumdar S/o Late Bhola Nath Mazumder - Gauhati"].
Order 21 Rule 26 CPC - Power to stay execution Main points:
Even if the appellate court declines stay, the executing court may still stay sale or execution if justified, especially to prevent substantial loss ["M. Nageshwar Rao (died) VS M. A. Samad - Telangana"].
Principles for granting stay during appeals and specific circumstances Main points:
The stay order is generally limited to the specific aspect of the proceedings, e.g., sale of immovable property, pending appeal ["M. Nageshwar Rao (died) VS M. A. Samad - Telangana"].
Order 41 Rule 3A CPC - Mandatory stay restrictions Main points:
This provision is mandatory and aims to prevent unwarranted stays before the appeal is considered ["United India Insurance Company Limited VS Undamatla Varalakshmi - Andhra Pradesh"], ["Niladri Maiti VS Swati Das - Calcutta"].
Judicial interpretations and exceptions Main points:
Analysis and Conclusion:Order 41 Rule 5 CPC provides a framework where appellate courts can stay proceedings, but such stay is not automatic and must be explicitly granted, often with conditions. The executing court’s authority under Order 21 Rule 26 CPC allows it to stay execution even if the appellate court refuses stay, especially to prevent substantial loss. However, the mandatory restrictions imposed by Order 41 Rule 3A CPC prevent courts from granting stay before the appeal is heard under Rule 11, ensuring that stays are granted judiciously and only after the appeal is considered. Judicial precedents emphasize the importance of balancing the rights of decree holders and appellants, with courts exercising discretion based on the circumstances, including the nature of the decree, the potential for substantial loss, and procedural requirements.
In the complex world of civil litigation, one common question arises frequently, especially in execution proceedings known as 'B Suits': If you file an appeal against a decree or order in an execution case, does it automatically halt the execution process? Or do you need a separate stay application under Order 41 Rule 5 of the Code of Civil Procedure (CPC)?
The query often phrased in Hindi captures this perfectly: b Suit ?? ?????? ?? ????? ???? ???? ??, ?? ?????? ?? — ???? ?? ?????? ?? ???????? (execution) ?? Order 41 Rule 5 Cpc ?? ??? ??? (stay) ???? ?? ???? ??? (Translation: In a 'B Suit' execution case, if an appeal is filed against the decree/order, does the execution automatically stay, or does Order 41 Rule 5 CPC require a separate stay?).
This blog post breaks down the legal position, drawing from key judicial interpretations. Note: This is general information based on precedents and not specific legal advice. Consult a qualified lawyer for your case.
Order 41 Rule 5 CPC governs the appellate court's power to stay execution of a decree or proceedings pending appeal. Importantly, stay is not automatic upon filing an appeal. The appellate court can only grant a stay if specific conditions are met, ensuring a balance between the appellant's rights and the decree-holder's interests. Kanpur Jal Sansthan VS Bapu Construction - 2014 0 Supreme(SC) 945Iftikhar Imam Mallick @ Iftikhar Imam VS Mehroon Nisha - 2014 0 Supreme(Ori) 485
The provision states that the court shall not grant a stay unless:- The applicant furnishes security for the due performance of the decree.- The court is satisfied that substantial loss may result to the applicant without the stay. Kanpur Jal Sansthan VS Bapu Construction - 2014 0 Supreme(SC) 945
This discretionary power must be exercised judicially, based on the facts of each case. As held in judicial analysis, the law emphasizes that stay of execution is not automatic upon filing an appeal but requires satisfaction of specific conditions. Iftikhar Imam Mallick @ Iftikhar Imam VS Mehroon Nisha - 2014 0 Supreme(Ori) 485
'B Suits' typically refer to execution petitions under Order 21 CPC, where a decree-holder seeks enforcement of a court decree. When an appeal is filed against the decree or an order in such proceedings, the question of stay under Order 41 Rule 5 arises directly.
Here, the appellate court restricts its power to grant stay unless conditions like security are fulfilled. It applies specifically to stay of execution pending appeal, preventing automatic halts. In one interpretation, Order 41 Rule 5 CPC applies specifically to stay of proceedings or execution of a decree pending appeal. It restricts the appellate court from granting stay unless the conditions are met. Kanpur Jal Sansthan VS Bapu Construction - 2014 0 Supreme(SC) 945
The executing court itself may stay under Order 41 Rule 6 if notified of the appeal, but ultimate control lies with the appellate court. Embassy Hotels(P) Ltd, represented by its Managing Director, Coimbatore VS Benjamin Proprietor of Nirmala Industries, The Nilgiris District - 2008 Supreme(Mad) 880
To secure a stay, appellants must demonstrate:- Substantial loss: Without stay, irreparable harm or substantial loss to the appellant. Iftikhar Imam Mallick @ Iftikhar Imam VS Mehroon Nisha - 2014 0 Supreme(Ori) 485- No unreasonable delay in applying for stay. Kanpur Jal Sansthan VS Bapu Construction - 2014 0 Supreme(SC) 945- Furnishing security: Crucially, this does not mandate depositing the entire decretal amount. Security can be via bank guarantees, bonds, or undertakings. The law does not mandate deposit of the entire decretal amount as a precondition for stay; rather, furnishing security (which may include bank guarantees or bonds) suffices. Kanpur Jal Sansthan VS Bapu Construction - 2014 0 Supreme(SC) 945
Failure to comply can lead to vacating the stay. The stay becomes effective only upon communication to the executing court. Iftikhar Imam Mallick @ Iftikhar Imam VS Mehroon Nisha - 2014 0 Supreme(Ori) 485Madhurendra Kumar Singh VS Asha Devi - 2022 Supreme(Pat) 830
Courts have clarified that demanding full deposit as a precondition is generally unsupported. In execution cases involving residential premises, stays are often granted upon undertakings. For instance, In cases where subject matter of suit is residential premises and judgment-debtor is residing in it, prayer for stay ordinarily be granted. Madhurendra Kumar Singh VS Asha Devi - 2022 Supreme(Pat) 830
The appellate court's power is discretionary and judicial. It cannot bypass conditions using inherent powers under Section 151 CPC. The law is clear that the appellate court’s jurisdiction to stay execution is confined within these provisions, and it cannot exercise inherent powers to bypass them. Iftikhar Imam Mallick @ Iftikhar Imam VS Mehroon Nisha - 2014 0 Supreme(Ori) 485
In arbitration execution contexts, stays were upheld pending appeals, but with modifications on provisions like Section 82 CPC for entities like NEEPCO (a 'State' under Article 12). The court noted valid reasons for stay in execution of awards. Hindustan Construction Co. Ltd. VS North Eastern Electric Power Corporation Ltd. (NEEPCO) - 2023 Supreme(Megh) 13
For motor accident claims, Order 41 Rule 3-A(3) CPC's 'shall' was interpreted permissively, allowing stays even in delayed appeals upon deposit. The court concluded that the word ‘shall’ in this context is permissive. Shriram General Insurance Company Limited VS Sou. Jyoti Vithoba Nahire - 2023 Supreme(Bom) 2141
Under Article 227, high courts direct expeditious disposal of stay applications to protect property rights. Manjit Kaur @ Rani Through his Lrs VS Raghu Khosla - 2023 Supreme(P&H) 700
In injunction decrees, appellate courts may suspend via inherent powers in appropriate cases, but not stay non-executable injunctions outright. Trivikram Prasad VS Yashodanandan Dwivedi - 2022 Supreme(MP) 139Rampati Satya Harichandra Prasad VS Atkuri Venkatanarayana - 2001 Supreme(AP) 1387
Non-compliance with Apex Court conditions leads to dismissal of stay applications by executing courts. Embassy Hotels(P) Ltd, represented by its Managing Director, Coimbatore VS Benjamin Proprietor of Nirmala Industries, The Nilgiris District - 2008 Supreme(Mad) 880
These cases illustrate that while discretion exists, conditions remain paramount.
In perpetual injunction cases, execution isn't typical, reducing stay needs, but appeals can still seek suspension if loss is shown. Rampati Satya Harichandra Prasad VS Atkuri Venkatanarayana - 2001 Supreme(AP) 1387
Understanding these nuances can prevent unnecessary losses. For tailored advice, consult a legal professional. Stay informed, stay protected!
References:1. Kanpur Jal Sansthan VS Bapu Construction - 2014 0 Supreme(SC) 945: Scope of Order 41 Rule 5, conditions including security.2. Iftikhar Imam Mallick @ Iftikhar Imam VS Mehroon Nisha - 2014 0 Supreme(Ori) 485: Judicial discretion, security importance.3. Additional cases: Hindustan Construction Co. Ltd. VS North Eastern Electric Power Corporation Ltd. (NEEPCO) - 2023 Supreme(Megh) 13, Shriram General Insurance Company Limited VS Sou. Jyoti Vithoba Nahire - 2023 Supreme(Bom) 2141, Manjit Kaur @ Rani Through his Lrs VS Raghu Khosla - 2023 Supreme(P&H) 700, Trivikram Prasad VS Yashodanandan Dwivedi - 2022 Supreme(MP) 139, Madhurendra Kumar Singh VS Asha Devi - 2022 Supreme(Pat) 830, Embassy Hotels(P) Ltd, represented by its Managing Director, Coimbatore VS Benjamin Proprietor of Nirmala Industries, The Nilgiris District - 2008 Supreme(Mad) 880, Rampati Satya Harichandra Prasad VS Atkuri Venkatanarayana - 2001 Supreme(AP) 1387.
#Order41Rule5, #CPCStay, #ExecutionStay
(A) Code of Civil Procedure - Section 115, Order 21 Rule 26, Order 41 Rule 5 - Civil revision petition challenging ... So far as next submission is concerned, it is apt to reproduce Order 41 Rule 5 CPC. 21. Order 41 Rule 5 CPC reads as under: “Order 41#....
(A) Code of Civil Procedure, 1908 – Order 41 Rule 6(2) – Civil Revision Petition – Decree holder's request ... (Paras 8, 14, 16) (B) Execution Proceedings – The execution court must adhere to the provisions of Order 41 ... Even in a situation where the stay has been declined by the appellant Court under Rule 5 of the Order 41 of the C....
Eviction - Ejectment Suit - Order IX Rule 13, Order 41 Rule 5 - The court emphasized the necessity of proper ... Now with regard to the issue of stay of execution it is necessary to consider the provisions contained in order 41 Rule 5 sub-Rule-3 of the Code of Civil Procedure. 29. ... Order #HL_STAR....
Civil Procedure Code, 1908 – Order 41, Rule 5 – Stay of Execution Case – Decree for specific performance ... This interlocutory application has been filed under Order 41, Rule 5 of the Code of Civil Procedure for staying the further proceeding of Execution Case No. 07 of 2022 pending in the court of learned Civil Judge, Senior Division, Kahalgaon, Bhag....
Order 41 CPC is that normal rule, which applies to appeals before the High Court. ... MV Act - Applicability of Order 41 Rule 3-A CPC - Section 173 of the Motor Vehicles Act, 1988 - Summary of Acts and Sections: ... Issues: The main issue was regarding the applicability of Order 41 Rule 3-A CPC to the appeals under Section 173 of the MV ... 173 of the MV Act & Order #H....
Sinha (Supra), as referred by the opposite party, the execution proceeding was stayed upon condoning the delay, holding that the prohibition contained in Order 41 Rule 3A C.P.C. would not be construed to be a complete prohibition in case of an order appealed against Order 41 Rule 2 C.P.C. ... Sinha (Supra) that the p....
of Order XXI Rule 26 CPC to pass the operative portion of the impugned order. ... 2.5. In the meantime, the petitioner filed Execution Petition for execution of the said Award. The application was filed under Order XXI Rule 11 of the Code of Civil Procedure read with Section 36 of the Arbitration and Conciliation Ac....
to the Court below under Rule 13 of Order 41 of the Civil Procedure Code. ... Since an issue was raised with respect to the interpretation/construction of sub-rule (3) of Rule 3-A of Order XLI of the Code of Civil Procedure, 1908 ( the 'CPC') which directs that the Court shall not make order of stay....
has rejected the application, dated 14.08.2019, filed by the appellants under Rule 97 & 101 of Order XXI of the C.P.C. in the said Title Execution Case, arising out of Title Suit No. 136/2006. ... its jurisdiction under Order XXI Rule 97 of CPC was justified or not? ... Ahmedabad Municipal Corporation reported in Civil Appeal No. 16956-16957 of 2017, ....
The petitioner(s) has invoked the jurisdiction of this Court under Article 227 of Constitution of India, for issuance of appropriate direction to learned Lower Court, for deciding the stay application dated 07.12.2022 (Annexure P-4), filed under Order 41 Rule 5 read with Section 5 of CPC. ... It is submitted by learned counsel for the petitioner(s) that an application f....
It is only when breach of injunction order is committed by a party, who had opportunity of obeying the decree and has failed to obey it, an application can be filed under Order 21, rule 32 of C.P.C. for his detention in civil prison or by attachment of his property or both. In view of aforesaid, appellate Court had committed an error of law in passing an order of stay over decree of injunction. To dilate further in all decrees for possession or demolition of structures or payment of money, whe....
By the Amendment Act 104 of 1976 an Explanation has been added to sub-rule (1) to provide that an order for stay of execution made by the appellate Court operates only from the time it is communicated to the executing Court. After an appeal has been filed the appellate Court may order the stay of proceedings under the decree or of execution of such decree. “4. Rule 5 of Order 41, CPC relates to stay of proceedings and of execution.
But there is no provision under Order 41, Rule 5, CPC putting a mandate to deposit cash security as the only mode of security for execution of decree. But the impugned order indicates that for grant of stay ,of execution of decree in the shape of security, Learned Appellate Court directed for deposit of the entire decretal amount, which should be deposited so that stay of execution can be passed as an interim measure before considering the appeal by the Appellate Court. Further, Orde....
No doubt, the executing Court is competent to stay the decree which was passed by it, when an appeal is pending against the decree and Judgment of the Court which passed the same. As per Order 41 Rule 5 of CPC, the Appellate Court can stay the execution of the decree. Under Order 41 Rule 6, the Court who passed the decree can also stay the execution of the decree passed by the Court, if It is brought to the notice that an appeal is pending against the decree and Judgment of t....
To dilate further in all decrees for possession or demolition of structures or payment of money, when once the decree is executed it will be difficult to restore the parties to the previous position and there is every likelihood of third parties interests being set in and many more complications are likely to arise. I, therefore, find force in the contention of sri Chandrasekhar that the decree for perpetual injunction in a case of this type is not executable and question of stay of such decre....
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