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)
