When is this affidavit used?
An appeal does not automatically stop enforcement of the decree or order appealed from. Under Order XLI Rule 5 of the Code of Civil Procedure, 1908, the appellate court may stay execution for sufficient cause. In appropriate circumstances, the court that passed an appealable decree may also stay execution when an application is made before expiry of the time allowed for filing the appeal.
An affidavit is commonly filed in support of the stay application to place the relevant facts on oath, including the threatened or pending execution, likely prejudice, promptness of the application and the applicant's readiness to comply with any lawful condition concerning security or deposit.
Order XLI Rule 5 CPC: current legal position
The statutory starting point is that merely filing an appeal does not stay the decree. The appellate court must pass a stay order. For a stay under sub-rules (1) and (2), sub-rule (3) directs the court to consider whether substantial loss may result if stay is refused, whether the application was made without unreasonable delay, and whether security has been given for due performance of the decree or order that may ultimately bind the applicant.
Sub-rule (4) allows an ex parte stay, subject to sub-rule (3), pending hearing of the application. Sub-rule (5) also deals with the consequence of failure to make the deposit or furnish the security referred to in Order XLI Rule 1(3).
In Lifestyle Equities C.V. & Anr. v. Amazon Technologies Inc., 2025 INSC 1190, the Supreme Court examined the principles governing stay of execution of a money decree and recognised that an exceptional case may justify an unconditional stay. In Popular Caterers v. Ameet Mehta & Ors., 2025 INSC 1354, the Court again discussed those principles while considering an unconditional stay in the context of an arbitral award operating as a money decree. These decisions should be read with the precise facts and the statutory framework applicable to the proceeding.
Sample affidavit format
CIVIL APPELLATE JURISDICTION
INTERLOCUTORY / MISCELLANEOUS APPLICATION NO. ____ OF 20__
IN
FIRST APPEAL NO. ____ OF 20__
APPLICATION UNDER ORDER XLI RULE 5 OF THE CODE OF CIVIL PROCEDURE, 1908
IN THE MATTER OF:
VERSUS
I, ______________________, son/daughter/wife of ______________________, aged about ____ years, residing at ________________________________________, do hereby solemnly affirm and state as follows:
1. I am the Applicant/Appellant in the accompanying application and the above appeal. I am well acquainted with the facts and circumstances of the case and am competent to swear this affidavit.
2. The learned __________________ Court, by judgment and decree/order dated __________ passed in __________________ No. ____ of 20__, has ________________________________.
3. Being aggrieved by the said judgment and decree/order, I have preferred the accompanying appeal on, inter alia, the grounds stated in the memorandum of appeal.
4. The Respondent has initiated / threatened execution of the said decree by ________________________________. The execution proceedings, if any, are numbered __________________ and are pending before __________________.
5. Unless execution is stayed pending disposal of the appeal, I will suffer substantial loss because ________________________________________________. The prejudice cannot be adequately remedied merely by allowing the appeal at a later stage.
6. The application for stay has been made without unreasonable delay. The material dates are: judgment/decree dated __________; knowledge/certified copy dated __________; appeal filed on __________; and the present stay application filed on __________.
7. I undertake to comply with such lawful condition regarding security, deposit or other protection of the Respondent's interest as this Hon'ble Court may consider appropriate under the facts of the case and applicable law.
8. The balance of convenience lies in preserving the subject matter of the appeal and preventing irreversible prejudice until the appeal is adjudicated.
9. It is therefore just and necessary that this Hon'ble Court may be pleased to stay the operation and/or execution of the judgment and decree/order dated __________ passed in __________________ No. ____ of 20__, and all consequential execution proceedings, during the pendency of the appeal, on such terms as this Hon'ble Court deems fit.
DEPONENT
Verification
I, the above-named Deponent, verify that the contents of paragraphs 1 to ____ are true and correct to my knowledge, the contents of paragraphs ____ to ____ are based on records/legal advice believed to be true, and nothing material has been concealed therefrom.
Verified at __________________ on this ____ day of __________, 20__.
DEPONENT
Drafting points to check before filing
- Use the exact cause title, case number, jurisdiction and nomenclature prescribed by the court concerned.
- Identify the decree/order sought to be stayed by date and proceeding number.
- Describe execution steps already taken or immediately threatened.
- Give concrete facts showing substantial loss; avoid merely repeating the words of the rule.
- Explain every material period of delay, if any.
- Address security/deposit and any special rule governing money decrees, possession decrees or the subject matter involved.
- Ensure verification, attestation, identification and e-filing requirements comply with the applicable High Court or subordinate-court rules.
Frequently asked questions
Does an appeal itself stay execution?
No. Order XLI Rule 5 expressly proceeds on the basis that an appeal does not itself operate as a stay. A stay must be ordered by the competent court.
Is security always relevant?
Security is one of the matters expressly addressed by Order XLI Rule 5(3). The precise form and condition of security or deposit depends on the decree, the governing provision, the facts and the court's order.
Can an ex parte stay be granted?
Yes. Sub-rule (4) permits an ex parte stay, subject to sub-rule (3), pending hearing of the stay application.
Can the court impose conditions while granting stay?
Yes. Appellate courts may impose appropriate conditions to balance the interests of the appellant and decree-holder, subject to the CPC and the facts of the particular case.
Legal update: Statutory position checked against the Code of Civil Procedure, 1908 and recent Supreme Court guidance available as of 29 August 2026. Always verify local amendments and the rules of the court where the matter is filed.