Stay of proceedings and of execution
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 provision of sub-rule (3)], the Court may make an ex parte 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.]
Note: 1. The Explanation
ins. by s. 87, ibid., (w.e.f. 1-2-1977).
2. Subs. by Act 104 of 1976,
s. 87, for certain words (w.e.f. 1-2-1977).
3. Ins. by s. 87, ibid.
(w.e.f 1-2-1977).
Part in Red is
original provisions from CPC reproduced here for reference.
Simplification:
Mere
filing appeal would not be enough for stay of operation of the order. Stay
order is to be passed by the appellate court for “sufficient cause”.
Reference:
http://www.nja.nic.in/16%20CPC.pdf
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