A separate stay application can be filed to seek stay form the higher court while filing appeal under order xliii of Civil Procedure Code. As per Order XLIII of CPC an appeal shall be from the following orders under the provisions of section 104.
Sample format of Stay Application to be filed with appeal under order 43 of CPC is given below:
IN THE ______ COURT OF _______ AT NEW DELHI
CIVIL MISCELLANEOUS APPLICATION NO_____ OF 20__
IN THE MATTER OF:
_______________ ....... APPELLANT/ APPLICANT
_______________ & ORS ....... PLAINTIFF/ OPPOSITE PARTY
APPLICATION UNDER SECTION 151 OF CPC FOR GRANT OF STAY
THE HON'BLE CHIEF JUSTICE AND HIS COMPANION JUDGES OF THE HON'BLE HIGH COURT OF DELHI.
THE PETITIONERS ABOVE NAMED
MOST RESPECTFULLY SHOWETH:
1. That the opposite party No. 1 ______________filed a suit for permanent
injunction in the Court of Civil Judge,______________ being original Suit
No_____, __________________ v. ______________with the prayed that the respondent
be restrained not to interfered in peaceful possession over the tank in dispute
of an area of _____ Acres situated in plot No______________. Copy of Plaint is
annexed herewith and as Annexure No. 1.
2. That during the pendency of the suit the opposite party No. 1 moved an application for temporary injunction. Copy of the application for Temporary injunction annexed herewith and marked as Annexure No. P2.
3. That the ___________________Court on the application of the plaintiff opposite party No. 1 appointed a Amin Commissioner to submit its report. The Amin Commissioner submitted report before the Court below on______________
4. That the appellant-applicant on _____________ filed the objection against the application of the plaintiff-opposite party moved for the temporary injunction. Copy of the Objection filed by the Applicant is annexed herewith and marked as Annexure P3.
5. That the case of the appellant-applicant is this that he has been granted patta on ______ 20__ of an area ___ acres of North West portion of plot No. _____.
6. That it is State that the Amin Commissioner submitted its report before
the Court below on ______20__. The counsel for the appellant-applicant prayed
for time for filing objection against the report of the Amin Commissioner
submitted on ______________ but the ______ Court refused to grant time and
directed both the parties to argue on the said report and after hearing argument
on merit reserved the judgment and pronounced the judgment on next day i.e.
______________ It is also pertinent to mentioned here that the applicant filed
his reply against the application of the plaintiff-opposite party No. 1 moved
for temporary injunction on _____ 20 _____.
7. That it is stated that the court below relied upon the report of the Amin Commissioner without giving any opportunity to the applicant for filing objection against the same.
8. That the counsel for the appellant moved an application before the Court below on______ 20______ with the prayer that the applicant wanted to file the appeal against the order dated ______ and prayed that operation of the order be stayed for 15 days but the Court below rejected the application of the applicant.
9. That it is stated that the order of the Lower Court has not been given affect to so far hence it is expedient in the interest of justice that the Hon'ble Court be pleased to stay the operation of impugned so judgment and order dated ______ Passed in Original Suit No______ granting ad interim injunction, during the pendency of this appeal before this Hon'ble Court otherwise the applicant shall suffer irreparable loss and hardship.
In view of the facts & circumstances stated above, it is most respectfully prayed that this Hon'ble Court may be pleased to:-
a) allow this application and stay the operation of impugned judgment and order dated _______ passed in Original Suit No________ of 20________ Shri________________ v. ________ and others pending in the Court of Civil Judge, ________ during the pendency of this appeal before this Hon'ble Court;
b) Any other relief, order or direction this court may deem fit and proper under the facts and circumstances of this case.
COUNSEL FOR THE PETITIONERS
Rule 1 Order XLIII "Appeal from orders"
An appeal shall be from the following orders under the provisions of section 104, namely :-
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court except where the procedure specified in rule 10 A of Order VII has been followed;
(c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;
(f) an order under rule 21 of Order XI.;
(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;
(ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable.
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(1) an order under rule 10 of Order XXII giving or refusing to give leave;
(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;
(p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;
(q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII;
(r) an order under rule 1, rule [rule 2A], rule 4 or rule 10 of Order XXXIX;
(s) an order under rule 1 or rule 4 of Order XL;
(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;
(u) an order under rule 23 or rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate court;
(w) an order under rule 4 of Order XLVII granting an application for review.
Rule 1A Order XLIII "Right to challenge non-appealable orders in appeal against decrees"
(1) Where any order is made under this Code against a party and there upon any Judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the Judgment should not have been pronounced.
(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.
Rule 2 Order XLIII "Procedure"
The rules of Order XLI shall apply, so far as may be, to appeals from orders
Stay Application in Appeal under Order XLIII of Civil Procedure Code
Suit for Specific Performance with alternate prayer for refund of money
Summary Suit under Order XXXVII of CPC for recovery of money, Cheque return
Suit for Compensation for death or physical disability due to negligence of others
Suit seeking injunction against illegal construction, public nuisance etc.
Suit already filed, Injection Application seeking Injunction in a Suit already filed
Suit for Possession of Property after termination of License Agreement
Suit for Possession of Property Trespassed by Defendant
Affidavit for Transfer Petition U/S 24 of CPC transfer of Suit from one Court to another