Procedure for Stay on Execution

Aashima Kakkar

A stay of execution is a court order that prevents a judgement or other court order from being carried out for a period. The term “execution” does not always imply the death penalty (though it can) instead, it refers to the imposition of whatever judgement is being postponed.

It is like a restraining order. A stay can be granted either automatically or conventionally when the parties in a civil or criminal case agree that no execution will take place for a certain period. If a party files an appeal, the original courts judgement may be stayed until the appeal is resolved.

A defendant while fighting a case for recovery of money or recovery of land or rightful ownership of the land, can use one of the defenses such as stay of execution under the Civil Procedure Code 1908 (hereinafter as CPC) that describe the procedure to be followed. There are different provisions of stay on execution under CPC, which are applicable in different circumstances. These provisions are stated below-

Legal Provisions

Order-21 Rule-26

“When court may stay execution.- (1) The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment debtor to apply to the court by which the decree was passed, or to any 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 of first instance or Appellate Court if execution had been issued thereby, or if application for execution had been made thereto,

(2) Where the property or person of the judgment debtor has been seized under an execution, the court which issued the execution may order the restitution of such property or the discharge of such person pending the result of the application.

(3) Power to require security from, or Impose conditions upon, judgment debtor: Before making an order to stay execution or for the restitution of property or the discharge of the judgment debtor, the court shall require such security from, or impose such conditions upon, the judgment debtor as it thinks fit”

This rule states that if sufficient cause is shown and the judgment-debtor provides security or complies with any conditions imposed on him, the executing court may stay the execution of a decree for a reasonable time to allow the judgment-debtor to apply to the court that issued the decree or to the appellate court for an order to stay execution. The power of a transferee court to stay the execution of a decree is not the same as the power of the court that issued the decree. A transferee court cannot grant a stay based on inherent power.[1]

This Rule seems to apply to four different courts. The court to which the order has been submitted for execution, the court that passed the injunction, the appellate court that has authority over the decree, and the appellate court that has jurisdiction over the execution of the stay order are the first four courts.

The principle of fair time specified in the clause only extends to the first court, not the other courts. The clause only states that if adequate cause is shown, the said first court shall grant a stay of execution for a limited period, and the object of this reasonable period is to allow a judgment debtor (JD) to seek an injunction from one of the other three courts.

Order-21 Rule-29

“Stay of execution pending suit between decree holder and judgment debtor – Where a suit is pending in any court against the holder of a decree of such court or of a decree which is being executed by such court, on the part of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided: 

Provided that if the decree is one for payment of money, the court shall, if it grants stay without requiring security, record its reasons for so doing.”

The suit must be initiated between a judgement debtor and a decree holder. Such a lawsuit must be ongoing before either the decretal court or the court that is carrying out the order. The court can grant a stay in such a case. It will be a waste of time to contend that any suit would suffice. The amount of time for which a stay can be granted is evident.

According to the clause, the stay will be granted before the pending suit is determined, suggesting that the outcome of the suit will influence the execution proceedings. Consequently, the prayer for stay and the pendency of the suit must be linked.

Otherwise, the provision’s condition would not be met. The wording of the clause also indicates that if a decree is submitted to another court for execution when a case is pending before the decretal court, the decretal court cannot allow a stay. The use of the terms “any court” in one location and “such court” in two locations is a direct example of this proposition. Clearly, this clause restricts the length of time that can be spent in the country.

Case Law: In the case of Shri Krishna Singh v. Mathura Ahir[2] it was held that a suit at the instance of the judgment-debtor against the decree-holder.

Order-41 Rule-5(1)

“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.

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 to 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 country, be acted upon by the court of first instance.”

The suit must be initiated between a judgement debtor and a decree holder. Such a lawsuit must be ongoing before either the decretal court or the court that is carrying out the order. The court can grant a stay in such a case. It will be a waste of time to contend that any suit would suffice. 

The amount of time for which a stay can be granted is evident. According to the clause, the stay will be granted before the pending suit is determined, suggesting that the outcome of the suit will influence the execution proceedings. Consequently, the prayer for stay and the pendency of the suit must be linked. Otherwise, the provision’s condition would not be met. 

The clause before the decretal court, the decretal court cannot allow a stay. The use of the terms “any court” in one location and “such court” in two locations is a direct example of this proposition. Evidently, this clause restricts the length of time that can be spent in the country.

Order 41 Rule 5(2) CPC

“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 there from, the court which passed the decree may on sufficient cause being shown order the execution to be stayed.”

If an application for a stay of execution of an appealable decree is lodged before the deadline for challenging it, the Court that issued the decree can require the execution to be stopped if appropriate reason is being shown.

A decretal judge, according to Order 41 Rule-5(2), will grant a stay. The only stipulation is that the stay claim must be filed before the deadline for filing an appeal.

This situation ends not only when the deadline for filing an appeal passes, but also when an appeal is favoured. As a result, whether an appeal has been already filed or the time limit has passed, a decretal court cannot extend a stay in any case. The ability of those courts to grant a stay is severely restricted.

Order-41 Rule-5(3)

“No order for stay of execution under sub-rule (1) or (2) shall be made until the Court is satisfied that:

  1. substantial loss may result to the party applying for the stay of execution unless the order is made
  2. the application has been made without unreasonable delay; and
  3. the applicant has given security for the due performance of any decree or order.”

Furthermore, ample reason must be shown in order to obtain a stay. What may be a sufficient reason?  For example, Judgement debtor has filed an application for review of the conviction, the judgment debtor has filed an application to set aside the Ex-parte decision, or the judgment debtor has been unable to lodge an immediate appeal due to his weak financial situation, but the decree holder is pushing for immediate execution. These are only for illustration purposes. It should also be remembered that, under Rule-5(3), the requisite conditions must be fulfilled before any permission is given.

Section-151 of the Civil Procedure Code, 1908

“Saving of Inherent Powers of Court – Nothing in this Code shall be construed to impair or otherwise influence the Court’s inherent right to issue orders required for the administration of justice or to prevent misuse of the Court’s procedure.”

It empowers the court of law to issue orders in order to achieve justice or deter misuse of the legal system. As has been developed, this clause has no application where the CPC includes explicit provisions for executing an act. We can understand that there are several arrangements that allow us to continue. Consequently, Section-151 will not exist in the new case.

Conclusion

To say that execution proceedings have become a long-awaited process in which the parties have not received justice in a timely manner is trite. This delay in the completion of execution proceedings is in violation of fair trial principles. It is a common occurrence that execution does not result in the end of litigation, but rather in the inclusion of several provisions that enable successful execution to be thwarted.

Defendants must be dealt with firm hands, which necessitates a good interpretation of the rules by litigating attorneys and considerate judges. A stay on execution must be implemented in different ways in the different litigating circumstances. The courts of law, along with the lawyers must carefully implement these procedures and make sure undue advantage is not taken of the said law.

  1. Shaukat Hussain v. Bhuneshwari Devi, AIR 1973 SC 528.
  2. Shri Krishna Singh v. Mathura Ahir AIR 1982 SC 686