sridhar pasumarthy (ADVOCATE) 13 November 2022

Stay of execution decree for permanent injunction

Dear Members,

A decree was passed in a suit filed by plaintiff granting permanent injunction restraining the defendant from interfering with the possession and enjoyment of suit schedule immovable property, on contest. Now, defendant preferred an appeal along with application under Order 41 rule 5 cpc seeking stay of execution of the said decree. Is it maintainable? To my knowledge, decree for permanent injunction is not executable. Pls give your valuable suggestions with citations, if possible

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N.K.Assumi (Advocate) 13 November 2022

I am of the view that a decree for perpetual injunction is an excutable decree under Order XXI Rule 32 (1) of CPC and falls within the sweep of Order XLI of Rule 5 (1) of the CPC. In fact Order XLI Rule 5 (1) provides power of stay in appropriate case, and the appellate court in appropriate case may order stay of the execution of such decree of perpetual injunction but it should be based on equity. The appellate court should be prudent enough so that the decree holder does not suffer loss of his labor.