Nisman Parpia
‘Execution’ simply means the process for enforcing or giving effect to the judgement of the court. The principles relating to execution of decree are discussed with under sections 36 to 74 and Order XXI of the civil procedure code.
Hon’ble Apex Court in Ghanshyam Das v. Anant Kumar Sinha (AIR 1991 SC 2251) dealt with provision of the code relating to execution of decree and orders.
A stay of execution is an order which temporarily suspends the execution of a court judgement or any other court order. Stay of execution postpones the enforcement of a judgement against a litigant who has lost a case, called the judgement debtor.
Or we can say that if a person in a civil suit wins damages or some other form of relief, he may not be able to get it executed if the court issues a stay.
An additional stay of execution which lasts only for a limited period is usually granted when the judgement debtor appeals the case but a court may grant a stay of execution in any case in which it feels the necessity to secure the rights of the judgement debtor.
The term stay of execution may also mean to halt the execution of death penalty which is normally granted when a court decides to allow an additional appeal by a condemned prisoner.
It has been stated in S. Sundara Rao vs B. Appiah Naidu And Anr. on 7 July, 1953 that the court has power to make an order for stay of execution. It may withdraw execution by calling back the decree; or it may make an order for simultaneous execution by another court, which includes making an order for ratable distribution.
Rule 26 of order XXI of code of civil procedure 1908 states ‘When court may stay execution‘–
- The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such a decree for a reasonable time, to enable the judgement-debtor to apply to the court by which the decree was passed or even to any other court having Appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution or for any other order relating to the decree or execution which might have been made by such court for first instance or appellate court but the execution has to be issued thereby, or the application for execution has to be made thereto.( R. Senthilkumar & Another v. S. Ayyalusamy)
- When the property or person of the judgement – debtor has been seized under an execution, the court which issued the execution can order the restitution of such property or discharge of the person pending the result of the application. (Surjit Singh and others v. Kartar Kaur and others)
- Power to impose conditions and ask for security from the judgement-debtor before making an order to stay execution or restitute property or discharge judgement- debtor.
STAY ON EXECUTIONN BY THE COURT PASSING THE DECREE
The rule 5 of order XLI shows the provisions in relation to the grant of stay of proceedings by the court which has passed the decree. It is the right of the judgment debtor to not merely get barren success in case his appeal is allowed by the appellate court. This rule strikes the balance between these two opposing rights.
First where an application is made for stay of execution of an appealable decree prior to the expiration of the time allowed for appealing there from, second the court which passed the decree may, on sufficient cause shown, order the execution to be stayed by the court passing the decree.
The sub clause (3) enlists the essential conditions which needs to be satisfied before the stay is granted by the court:
- The application must be mandatorily made without any unreasonable delay.
- Substantial loss to the playing party has to be provided if the order of stay is not granted.
- The applicant should be providing security for due performance of the decree and it is mandatory for the court to receive such security before granting a stay.
Narinder Kumar v. M/S.N.K. Electronics, CR No.5754 of 2016; Learned counsel for the petitioner states that under order XXI rule 26 Civil Procedure Code, the executing court enshrines all necessary powers to stay execution of a decree for a reasonable amount of time so that the judgment debtor can apply for the lawful relief in the proceedings under order IX rule 13 Civil Procedure Code.
Learned counsel also refers to Narinder Kumar v. M/s. N.K. Electronics, 2010(5) RCR (Civil) 697. Notice of Motion for 07.11.2016. Till that time, the Executing Court is destined to adjourn to cases beyond the date fixed by this Court.
STAY ON ECEXUTION BY THE APPELLATE COURT
Order XLI, Rule 5(1) states that on an appeal being made, appellate court may stay the execution and 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 being preferred from the degree, but the appellate court may for sufficient cause order stay of execution of such decree.
Therefore, simple filing of an appeal does not result in automatic stay of execution of original decree, rules regarding the conditions to be fulfilled before grant of stay apply to stay by appellate court are equally important as well.
STAY BY COURT TO WHICH DECREE IS TRANSFERRED FOR EXECUTION
In many cases, the judgement debtor resides in places other than court which has passed the order and hence the execution of such proceedings lie outside its jurisdiction. The rule 26 of order XXI says that in such cases the transferee court also has the power to speedy execution.
However the power to stay in case of transferee court is not absolute. It can only stay the execution for a reasonable period of time to enable the judgement debtor to apply to the court passing the decree or to the appellate court for an order to stay execution. A transferee cannot invoke powers to grant stay.
When the judgement debtor applies for stay of execution, the transferee court must obtain security from the judgement before or impose conditions it may think as fit, these provisions are mandatory and imperative. The transferee court is restricted by an order made by the court which passed the decree or even by an appellate court in relation to execution of such degrees.
STAY OF EXECUTION OF A PENDING SUIT
Rule 29 provides for stay of execution pending suit between the decree holder and the judgement debtor, it also enacts that where a suit by the judgement debtor is pending in a court against the decree holder, such court may on furnishing security, stay execution of decree until disposal of the suit.
This rule enables the judgement debtor and the decree holder to adjust their claims against each other and also prevents multiplicity of proceedings. For application of this rule there must not only be a suit pending by the judgement debtor but also such suit must be against the decree holder. The provisions of rule 29 or not peremptory but discretionary. While exercising the discretion under rule 29, the court shall consider that party who has obtained a lawful decree isn’t deprived of the fruits of that decree except for good and cogent reasons.
Before 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 transferee court may also stay the execution on sufficient cause being shown.
CONCLUSION
The power to stay the execution is a very important provision enlisted in the civil procedure code, as it is important to balance the interest of both the decree holder as well as the judgement debtor and no person should be made to suffer the consequences just because of procedural issues.
However such power to stay must be used judicially and with great care so as to not prejudice or create bias against the rights of any parties. Witty defendants need to be tackled with firm hands and genius minds hence a clear understanding of law with the help of litigating lawyers and appreciative judges is necessary today.
*Execution when and how (latestlaws.com)
*Stay of Execution (indiankanoon.org)
*Execution of Decree (mja.gov.in)
Read more: Execution petition- process to execute decree
