Stay of execution:
Execution is the culmination of the suit. It is its final stage and the means are employed in due process of law to make a decree or order of a court effective. “Stay of execution,” therefore, means the suspension of the act of completing or carrying into effect the decree or order of a court.
Execution proceedings are commenced when the successful party makes an application in writing to the executing court. When execution is stayed the proceedings started by the successful party, on an application to the execution court, are suspended pending further orders of the court.
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ADVERTISEMENTS:
Stay by Appellate Court:
An appeal does not operate as a stay of proceedings under a decree or order appealed from, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree. The appellate court may, however, for sufficient cause, order stay of execution of such decree.
Stay by the court which passed the decree:
ADVERTISEMENTS:
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.
No order for stay of execution shall be made by the appellate court, or the court passing the decree as aforesaid, 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
ADVERTISEMENTS:
(c) That security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. [O. 41, R. 5 (3)].
Notwithstanding anything contained above, the court may make an ex parte order for stay of execution pending the hearing of the application. (O. 41, R. 4).
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) or R. 5 the court shall not make an order staying the execution of the decree.
Under Order 21, rule 26, C.P.C. 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 an appellate court for an order to stay execution. Before making an order to stay execution, the court may require such security from the judgment-debtor as it thinks fit.
Under rule 29 of the same Order the court may, on security or otherwise, stay execution of a decree until the decision of the pending suit, filed by the judgment-debtor against the decree-holder.
In Supreme Court appeal the High Court may stay the execution of the decree appealed from taking such security from the appellant as the court thinks fit for the due performance of the decree appealed from, or any order which the Supreme Court may make on the appeal.
The High Court has also the power to stay execution in view of an application to the Supreme Court for special leave.
In summary suits, if the defendant has not applied for leave to defend or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith. But the court may, after decree, under special circumstances, stay execution and give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the court so to do and on such terms as the court thinks fit.