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Jamai Of Law (propra)     25 April 2011

Peculiar situation in stay vide OXLI R5

Appeallable Order.

JD got Certified copy on the next day!! (friday) .

Order hasn't mentioned any automatic stay period, which is normally availed to JD, post order passed.

 

This is what is amazing. Generally in any order court it does say that e.g. 'pay or vacate the premise within 2 months or so.' etc etc (i.e. automatic stay availed to JD, by court which passed the decree)

 

On monday, i.e. within 3 days, JD files 'stay of execution' to court which passed the decree vide Order XLI Rule 5 sub rule 2

Appeal does lie at HC. and for appeal there are 90 days available (as of today still 8 days are available).

 

 

Above Matter came up for hearing.

 

 

Above Court asked JD that .... 'Have you filed appeal at HC?'

JD said  "not yet"

DH said "Then 'stay of execution' application is not maintenable"

 

 

Question:

To file 'stay' vide O41 R5, precondition is that one should file 'stay' within period which is available for fling appeal and also the decree should  be appellable.

But  O41 R5 does not anywhere say that 'it is mandatory that appeal also should have been filed at HC' ......... before matter of 'stay' comes up for hearing  at lower court (which passed the decree)

 

 

Is it mandatory that ppeal also should have been filed at HC before matter of 'stay' comes up for hearing  at lower court (which passed the decree)???

Pls comment.

 

 

Of course JD has filed review  within 30 days and also JD has got around 8 days to file appeal but JD won't appeal as 'it would deem to be a simultanous multiple remedy'

 

Of couse JD although hasn't yet preferred appeal (as a preconditoin of review) , JD hasn't abandoned his right to appeal (And JD  wants to use those as sequential remedies, when multiple remedies are available at different levals simultaneously)



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 1 Replies

Jamai Of Law (propra)     25 April 2011

Of couse JD although hasn't yet preferred appeal (as a preconditoin of review) , JD hasn't abandoned his right to appeal (And JD  wants to use those as sequential remedies, when multiple remedies are available at different levals simultaneously)

 

 

In above regards, somebody had written a scenario in DRT and DRAT (Review as well as Appeal was filed on time in respective forums/jurisdiction, Appeal came up for hearing quickly at DRAT, before Review could at DRT. Then JD filed for sine die adjournment at DRAT until matter adjudicated at DRT first, as a review and appeal are sequential remedies, when both options lie to JD )

 

 

 

Please post the above citation about DRT and DRAT if you know about it. Thanks in advance


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