Order XLI Rule 5 CPC: Stay by Appellate Court

THE FIRST SCHEDULE · ORDER XLI APPEALS FROM ORIGINAL DECREES · Stay of proceedings and of execution

Order XLI Rule 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.

¹[(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.]

Footnotes in the official text

1.Ins. by Act 104 of 1976, s. 87. (w.e.f. 1-2-1977).
2.Subs. by s. 87, ibid., for certain words (w.e.f. 1-2-1977).

Questions on this rule

4 questions in 21 of our papers cite Order XLI Rule 5. Try these from the free papers:

1. In an appeal against a decree for payment of money, the appellant was required under Order XLI Rule 1(3) CPC to deposit the amount disputed in the appeal or furnish security within the time allowed by the Appellate Court. He did neither. Under Order XLI Rule 5(5) CPC, the Court:
2. A decree for possession was passed against D on 1 March. On 10 March, before presenting any appeal and while the time allowed for appealing had not expired, D applied to the trial court for stay of execution. Under Order XLI Rule 5 CPC, the trial court: