STAY OF EXECUTION
By: Sudhanshu Shekhar 14IP60017 Execution is the culmination of the suit proceedings. It is defined as” The suspension of the act of completing or carrying into effect the decree or order of a court”. In other words, it is the enforcement of the order of the court. Until and unless the decree holder gets the decree or the order of the court executed it is of no use to him and he cannot reap the fruits of the decree. Execution proceedings are commenced when the successful party makes an application in writing to the executing court. However we would be dealing with another major concept related to execution proceedings i.e. Stay of Execution. The execution can be stayed by the Court of first instance i.e. the original court which passed the decree in the first place. It has got absolute power to stay the execution of the order or the decree. The provisions regarding such stay are enlisted in Order 41 Rule 5 of the Civil Procedure Code, 1908. Stay of execution is granted if the party can prove substantial loss if such order is not made. The stay can also be granted if an appeal has been filed against the original decree, in the appellate court of competent jurisdiction. There are also provisions for grant of stay by the transferee court in cases where the execution proceedings have been transferred to another court. Many times situations such arises that the parties reside in different places and the execution has to be carried out at some place other than the place of the court passing the decree. In such cases, the original court passing the decree may transfer such cases for execution to the required courts where the decree may be executed. The Transferee Court in such situations has also got certain powers for stay of execution proceedings, although such power not being absolute, but a qualified one. The provisions regarding such stay orders have been incorporated in Order 21 Rule 26-29 of CPC. DIFFERENCE BETWEEN STAY, INJUNCTION AND QUASHING ORDER Before dealing into conditions and requirements regarding the stay of execution, it is pertinent to understand the difference between staying of order and quashing of order. Quashing of order
means that the effect of the order is completely extinguished as if the order never existed in the first place. The position is restored with respect to both the first as was before the filing of the suit. However, stay of execution means that the order is very much in existence and only its operation has been deferred for a later time. Another significant point to be noted is the difference between an order of injunction and a stay of execution. An order of injunction is issued against an individual or a person restraining him from doing something whereas the latter is a direction or an order to a court to not to do something. Hence we see that an order of injunction is directed towards persons, administrative authorities, executive orders and stay order is directed towards judicial proceedings. So a proceeding can be very well be initiated against non-compliance of an order of injunction and thus making the party liable to punishment, and the proceedings cannot be termed as null and void being without jurisdiction. However no proceedings can be initiated against contravention of a stay order and such proceedings are a nullity and have no effect whatsoever.1 This is due to the reason that the court cannot be made a party to the suit in any case. An injunction operates as soon as it is issued but a stay order operates only when it is communicated to the court to which it is issued.2 STAY OF EXECUTION BY COURT PASSING THE DECREE Rule 5 of Order 41 discusses the provisions related to grant of stay of proceedings by the court which passed the decree. The object behind Rule 5 is to safeguard the interests of both the decree holder as well as the judgment debtor. It is the right of the decree holder to reap the fruits of his decree. Similarly it is the right of the judgment debtor not merely to get barren success in case his appeal is allowed by the appellate court. This rule strikes the balance between these two opposing rights. Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing there from, the court which passed the decree may, on sufficient cause being shown, order the execution to be stayed by the court passing the decree. Application must be filed before expiration of time allowed for appealing. According to Rule 5, sub-clause (3), the essential conditions which need to be satisfied before the stay is granted by the court are: 1. The application must be made without unreasonable delay. 1 2
Subash Kumar vs. Sheo Balak Singh, AIR 1975 Pat 307; Mulraj vs. Murti Raghonathji Maharaj, AIR 1967 SC 1386
2. Substantial Loss to the praying party must be proved if the order of stay is not granted. 3. The applicant must provide security for due performance of the decree and it is mandatory for the court to receive such security before granting the stay.
The condition regarding the furnishing of security was added by the amendment in 1976. Before the amendment it was at the discretion of the court to require security but after the amendment it has become mandatory to furnish security before the grant of stay is allowed. The court can also make ex-parte order for stay of execution pending the hearing of application if the above conditions are satisfied.3 The order passed by the court for stay of execution becomes effective from the date of communication to the court of first instance and not before that. This has been clearly stated by the explanation to Rule 5(1). STAY BY THE APPELLATE COURT Order 41, Rule 5(1) enlists the provisions regarding stay by the appellate court. The rule states that on an appeal being made, appellate court may stay the execution. An appeal shall not operate as a stay of proceedings under a decree or order appealed from 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. This means that mere filing of an appeal does not automatically results in stay of execution of the original decree. The rules regarding the conditions to be full-filled before grant of stay, apply to stay by appellate court as well. STAY BY THE COURT TO WHICH CASE HAS BEEN TRANSFERRED FOR EXECUTION Execution proceedings can also be stayed by the court to which the case has been transferred by the original court passing the decree. In many cases, the judgment debtor resides in places other than the original court which passed the order. And hence execution of such proceedings lies outside its jurisdiction. So the case is transferred to the court within whose jurisdiction the decree can be executed. Order 21, Rule 26 envisages the rules for stay by such court. The rule says that in such cases the transferee court also has the power to stay the execution. However the power to stay in case of transferee court is not absolute, as in case of a court passing the decree, but a 3
Order 41 Rule 5(4)
qualified one. It can only stay the execution for a reasonable period of time to enable the judgment debtor to apply to the court which has passed the decree or to the appellate court for an order to stay execution. Such an order by the transferee court is to be made on the application of the judgment debtor. A transferee court cannot invoke inherent powers to grant stay. 4The rule lays down that the executing court shall, on sufficient cause being shown may stay the execution. Where the judgment debtor applies for stay of execution, the transferee court must obtain security from the judgment-debtor or impose such conditions as it may think fit. The provisions are thus mandatory and imperative.5 The transferee court is bound by an order made by the court which passed the decree or by an appellate court in relation to execution of such decree.6 STAY OF EXECUTION PENDING SUIT Rule 29 provides for stay of execution pending suit between the decree-holder and the judgment debtor. It enacts that where a suit by the judgment-debtor is pending in a court against the decree holder such court may, on furnishing security or otherwise as it thinks fit, stay execution of the decree until the disposal of such suit. The main objective behind this section is twofold, namely: firstly, to enable the judgment debtor and the decree holder to adjust their claims against each other and secondly to prevent the multiplicity of proceedings. For this rule to apply there must be two simultaneous proceedings in one and the same court .the proceeding in execution of the decree at the instance of the decree holder against the judgment debtor and second suit is at the instance of the judgment debtor against the decree holder.7For the application of this rule, it is not sufficient that there is a suit pending by the judgment debtor. Such suit must be against the decree holder in such court. The words such court are important and would mean that the suit must be pending in the same court. The provisions of rule 29 are not peremptory but discretionary.8 The discretion however must be exercised judicially and in the interests of justice and not mechanically and as matter of course.9This rule is based on the principle that the judgment debtor may not be harassed if he has a substantial claim against the decree holder which is pending for decision of the court executing 4
Shaukat Hussain vs. Bhuvaneshvari Devi , (1972) 2 SCC 731 Gurinder Singh vs. Harmala Kaur , (1982) 2 SCC 54 6 Supra at 4 7 Ibid 8 Anoop Chand vs. Hirachand , AIR 1962 Raj 223 9 Quazi Rehman vs. Nurbanu Bibi , AIR 1976 Gau 39 5
the decree. If the court is of the view that there is some substance in the claim, it may order for the stay of execution filed by the defendant in that case but not otherwise.10 While exercising the discretion under Rule 29, the court should duly consider that party who has obtained a lawful decree is not deprived of the fruits of that decree except for good and cogent reasons.11So long as the decree is not set aside by the competent court, it stands good and effective and it should not be lightly dealt with so as to deprive the decree holder of the lawful decree of its fruits.12 A party should not be deprived of the fruits of the decree merely because a suit has been subsequently filed for setting aside that decree. Even if the stay is granted it should be on such terms as to security, etc. so that the earlier decree is not made ineffective due to lapse of time. Prior to the amendment in 1976, the power to stay the execution of the decree vested only in the court which passed the decree and the transferee court had no such power to stay the execution proceedings, but now as discussed above the transferee court may also stay the execution on sufficient cause being shown. CONCLUSION The power to stay the execution is an important provision enshrined in the Civil Procedure Code, as it is important to balance the interests of both the decree holder and the judgment debtor and no person should be made to suffer just because of procedural issues. However such power to stay must be used judicially and with great care so as to not prejudice the rights of any parties.
10
Supra at 8 Judhistir Jena vs. Surendra Mohanty , AIR 1969 Ori 233 12 Supra at 9 11
