Stay on Execution When & How by Rakesh Kumar Singh

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‘Stay on Execution: When & How’ by Rakesh Kumar Singh 

Decade is a normal time period if one is to ask a plaintiff of a civil suit more  particularly he who wants to get the possession of his own property either from the encroacher or from the tenants or from licensee or from persons to who he (or his ancestors) had given the property gratuitously.

A lucky plaintiff plaintiff gets a decree decre e of possession in respect of an immovable property. property. What are his options now? He is having the possession not of the real house but of certain papers with court approval. He has to act further to get the real house. He will then have to approach the court with a petition for eecution of a decree. !ut at the same time the person in occupation would also be acting to somehow save his interest and to deny the rightful relief to the original owner (plaintiff) of the property.

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A genius defendant of a decree will approach the situation in multiple ways.

#ome of them may be enlisted as under$

i. He may file and appeal against the %udgment & decree and pray for stay therein.

ii. He may choose to wait for some period and delay the matter and then file an appeal with an application for condonation.

iii. He may really choose not to file any appeal at all and may rely upon the tactics of ob%ection which can be filed in eecution proceedings.

iv. He may even choose to introduce a third person in the entire scenario who will create obstruction in recovery of possession p ossession and may file ob%ection ob %ection in eecution  proceedings. Stay on execution: when & how: prepared by Rakesh Kumar Singh

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v. He may choose to avoid the bailiff in such available manners which are in abundance in the real field.

vi. He may appear in the court passing the decree and may pray for stay on one or the other grounds.

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he present paper is however a humble attempt to search for the answer of last

of the enlisted tactical acts of a genius g enius defendant. he situation is that a defendant of a decree (herein after called D) comes before the court and files an application for stay on one or the other grounds and relies upon certain provisions of *+*. What needs to  be considered in such a scenario is the real issue.

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here are certain provisions in the *+* which may be normally invoked by a

genius D for praying p raying stay. stay. hese provisions are mentioned as under$

!rder"#$ Ru%e"#:  -When *ourt may stay eecution(/) the

*ourt to which a decree has been sent for eecution shall0 upon sufficient cause being shown0 stay the eecution of such su ch decree for a reasonable time0 to enable the %udgmentdebtor to apply to the *ourt by which the decree was passed0 or to any *ourt having appellate %urisdiction in respect of the decree or the eecution thereof0 for an order to stay sta y eecution0 or for any other order relating to the decree or eecution which might have been made by such *ourt of first instance or Appellate *ourt if eecution had been issued thereby0 or if application for eecution had been made thereto.1

!rder"#$ Ru%e"#': -#tay of eecution pending suit between

decreeholder and %udgmentdebtor Where a suit is pending Stay on execution: when & how: prepared by Rakesh Kumar Singh

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in any (ourt  against the holder of a decree of such (ourt  or of a decree which is being eecuted by such (ourt 0 on the  part of the person against whom the decree was passed0 the *ourt may0 on such terms as to security or otherwise0 as it thinks fit0 stay eecution of the decree until the pending suit has been decided$ +rovided that if the decree is one for  payment of money0 money0 the *ourt shall0 if it grants stay without re2uiring security0 security0 record its reasons for so doing1.

!rder")$ Ru%e"*+$,: -Stay by .ppe%%ate (ourt"  An appeal

shall not operate as a stay of proceedings under a decree or order appealed from ecept e cept so far as the Appellate Appellate *ourt may order0 nor shall eecution of a decree be stayed by reason only of an appeal having been preferred from the decree3 but the Appellate *ourt may for sufficient cause order stay of eecution of such decree. Exp%anation"  An order by the Appellate *ourt for the stay of

eecution of the decree shall be effective from the date of the communication of such order to the *ourt of first instance but an affidavit sworn by the appellant0 based on his personal knowledge0 stating that an order for the stay of eecution of the decree has been made by the Appellate *ourt shall0  pending the receipt from the Appellate *ourt of the order for the stay of eecution or any order to the contrary0 be acted upon by the *ourt of first instance1.

!rder")$ Ru%e"*+#,: -Stay by (ourt which passed the decree  Where an application is made for stay of eecution

of an appealable decree before the epiration of the time allowed for appealing therefrom0 the *ourt which passed the Stay on execution: when & how: prepared by Rakesh Kumar Singh

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decree may on sufficient cause being shown order the eecution to be stayed1.

!rder")$ Ru%e"*+/,: -4o order for stay of eecution shall be

made under subrule (/) or subrule (") unless the *ourt making it is satisfied (a) that substantial loss may result to the party applying for stay of eecution unless the order is made3 (b) that the application has been made without unreasonable delay3 and (c) that security has been given by the applicant for the due performance of such decree d ecree or order as may ultimately be binding upon him1.

Section"$*$: -Sa0ing o1 inherent powers o1 (ourt 5

 4othing in this *ode shall be deemed to limit or o r otherwise affect the inherent power of the *ourt to make such orders as may be necessary for the ends of %ustice or to prevent abuse of the process of the *ourt1.

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We may deal with all of the above provisions one by one. 2irst0 we may consider

!rder #$ Ru%e # (3(. 7t appears that this 8ule contemplates four courts. 9irst0 the

court to which decree has been sent for eecution0 Second0 the court which passed the decree0 4hird0 the appellate court having %urisdiction over the decree and fourth the appellate court having %urisdiction over the eecution. he reasonable time concept mentioned in the provision relates to the first court and not to the other courts. he  provision only says that the said first court shall grant a stay of eecution for reasonable time if sufficient cause is shown and the purpose for giving this reasonable time is that in such reasonable time a %udgment debtor (D) may obtain an order from either of rest of the three courts as the case may be.

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he first mentioned court in the !rder #$ Ru%e # (3(  is clearly a court to

Stay on execution: when & how: prepared by Rakesh Kumar Singh

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which decree was sent for eecution. he present court is the decretal court and0 therefore0 it cannot be accepted that this court would fall within the ambit of the first court envisaged by the aforesaid provision. *oncept of -sent1 has been envisaged by Section /5 (3(   and has been given effect to through Section /' (3(   along with !rder #$ Ru%e * (3(6  his clearly shows that there is difference between a court to

which the decree has been sent for eecution and a court which has passed the decree. herefore0 it is clear that the grant of reasonable time envisaged by ;rder "/ 8ule ": *+* applies only to the court to which the decree was sent for eecution and not to the decretal court itself. ;ne would therefore clearly say that if any D places on this  provision0 the same would not be of any help.

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he provision of !rder"#$ Ru%e"# (3( does not indicate towards the powers

of the rest of the three courts to grant stay. he power of appellate court to grant stay is available in ;rder ,/ 8ule 6(/) *+* and the power of decretal court to grant stay is available in !rder )$ Ru%e *+#, (3(6

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We may now dea% with the power o1 decreta% court to grant stay6  ;rder ,/

8ule6(") provides that even a decretal court cour t can grant stay. However0 the percondition percondition is that the stay application must be preferred before the epiry of time to file appeal. his situation comes to an end not only when the time for appeal actually epires but also when an appeal is preferred. As such0 in both the situations0 a decretal court cannot grant stay if appeal has already been preferred or the time has epired. #uch courts have very limited scope to grant stay. stay.

9urther0 sufficient cause has to be shown for getting a stay. What may be the sufficient cause? >ike0 D has filed an application for review of the %udgment0 D has filed an application for setting aside parte decree d ecree or that D due to his poor p oor financial condition is unable to file immediate appeal but decree holder is pres sing for immediate eecution. hese are illustrative only. 7t may also be noted that in terms of 8ule6(')0 the necessary re2uirements thereof will also have to be satisfied before granting any Stay on execution: when & how: prepared by Rakesh Kumar Singh

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stay. !e that as it may0 once an appeal is preferred or time for appeal epires0 the decretal court would have no power to grant any stay. stay.

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We may now deal with the appellate court power to grant stay. stay. ;rder ,/ 8ule

6(/) empowers an appellate court to grant stay on eecution. 9or sufficient cause0 an appellate court may grant stay. 7t may also be noted that in terms of 8ule6(')0 the necessary re2uirements thereof will also have to be satisfied s atisfied before granting any stay sta y.

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What is however interesting from the point of view of the decretal court is the

fact that filing of appeal or pendency of appeal itself cannot be a ground to urge that the eecution proceedings be stayed as 8ule6(/) specifically provides to the contrary contrar y.

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4ow0 4ow0 we may deal with the provision available in !rder"#$ Ru%e"#' (3(6 7t

has several re2uirements. here must be a suit pending between D and DH. he suit must be filed by the D against the DH. #uch suit must be pending either in the d ecretal court or in the court which is eecuting the decree. 7n such situation0 the court may grant stay. 7t would be futile to argue that any kind of suit will serve the purpose. 7t is clear from the time for which stay can be granted. 7n terms of the provision0 the stay can be granted until the pending suit is decided and therefore0 it clearly indicates that the result of the suit would affect the eecution proceeding itself.

#o0 it can be said that the prayer for stay and pendency of suit must have a correlation. ;therwise0 re2uirement of the provision will not satisfy. >anguage of the  provision also suggests that if decree is sent to another court for eecution and suit s uit is  pending in the decretal court0 then such decretal court cannot grant stay under this  provision. Bse of epression -any court1 at one place and -such court1 cou rt1 at two places are clear indication to this proposition. *learly0 this provision provides a very limited scope for stay. stay.

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>astly0 >astly0 we may deal with the #ection/6/ *+*. 7t authoriCes the the court to pass

Stay on execution: when & how: prepared by Rakesh Kumar Singh

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orders to meet the ends of %ustice or to prevent abuse of the process proces s of law. law. As has been settled0 this provision has no applicability at all where epress provisions are p rovided in the *+* for doing an act. We have seen that there are several provisions which  provide for stay. stay. herefore0 #ection/6/ will have no applicability in the present situation.

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enius defendants need to be tackled with firm hands and therefore0 clear

understanding of law by b y the litigating lawyers and appreciative a ppreciative %udges is necessary necessar y. We We will discuss in some other paper the other tactical approaches as enlisted in initial  paragraph.

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Stay on execution: when & how: prepared by Rakesh Kumar Singh