ORDER XLI STAY OF PROCEEDINGS AND EXECUTION - RULE 5, 6, 7, 8 OF CODE OF CIVIL PROCEDURE 1908

What is Stay by Appellate Court? What is Security in case of order for execution of decree appealed from? What is Exercise of powers in appeal from order made in execution of decree? Rule 5, 6, 7 and 8 of Order XLI of Code of Civil Procedure 1908

Stay by Appellate Court, Security in case of order for execution of decree appealed from and Exercise of powers in appeal from order made in execution of decree are defined under Rule 5, 6, 7 and 8 of Order XLI of Code of Civil Procedure 1908. Provisions under these Rules are:


 

Rule 5 Order XLI of Code of Civil Procedure 1908 "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 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 appeal able 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 far the due performance of such decree or order as may ultimately be binding upon him.

(4) Subject to the provisions of sub-rule (3), the Court may make an ex parte order for stay of execution pending the hearing of the application.

(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.

Rule 6 Order XLI of Code of Civil Procedure 1908 "Security in case of order for execution of decree appealed from"

(1) Where an order is made for the execution of a decree from which an appeal is pending, the Court which passed the decree shall, on sufficient cause being shown by the appellant, require security to be taken for the restitution of any property which may be or has been taken in execution of the decree or for the payment of the value of such property and for the due performance of the decree or order of the Appellate Court, or the Appellate Court may for like cause direct the Court which passed the decree to take such security.

(2) Where an order has been made for the sale of immovable property in execution of a decree and an appeal is pending from such decree, the sale shall, on the application of the judgment-debtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of.

Rule 8 Order XLI of Code of Civil Procedure 1908 "Exercise of powers in appeal from order made in execution of decree"

The powers conferred by rules 5 and 6 shall be exercisable where an appeal may be or has been preferred not from the decree but from an order made in execution of such decree.

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