Application for staty in execution of decree o 41 r 5 cpc
Om Shanker Shrivastava
(Querist) 10 December 2012
This query is : Resolved
Can the same be filed at Both the court at one time..The court court passed the decree and the next appellate court i.e. HC? if filed and got admitted at HC ( Appellate court) then what is the same application filed at the court which passed the decree?
Raj Kumar Makkad
(Expert) 10 December 2012
No. This application is maintainable only before the appellate court.
Advocate Bhartesh goyal
(Expert) 10 December 2012
5. Stay by Appellate Court
(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.
1[Explanation—An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance.]
(2) Stay by Court which passed the decree—Where an application is made for Stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.
(3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied—
(a) that substantial loss may result to the party applying for stay of execution unless the order is made;
(b) that the application has been made without unreasonable delay; and
(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.
(4) 2[Subject to the provisions of sub-rule (3)], the Court may make an ex pane order for stay of execution pending the hearing of the application.
3[(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree.]1977).
Under order 41 rule 5[2] of cpc the court who has passed the decree has ample power to stay the execution of decree if opposite party files an application before the said court within the period of appeal and satisfied the court in regard to substatial loss,being satisfied trial court can stay the execution of decree till the period of filing appeal.
Raj Kumar Makkad
(Expert) 10 December 2012
Bhartesh has put relevant law before you.
