Damayanti (Unemployed) 26 April 2011

Stay of Execution of of Non-Appeallable order

Before thinking of assailing the order, which is non-appeallable, at high court, I wanted to get the stay of execution that order , as a first and urgent need,

I was also expecting 'execution petition' very soon from opposite party.

What to do? Does Order 41 rule 5 apply to this scenario?

Also what is the sequence. First challenge/apply for set-aside the above type of order at right forum , and then secondly also apply for stay of execution.

First apply there for stay of execution and then secondly apply for set-aside (And also ... if 'stay of execution' is granted then can one simply take more time to get the 'set-aside' application adjudicated?)

I have applied for 'review' of Order + 'stay of execution' of the same order.

But I quoted Order 41 Rule 5 on 'stay application' at the same trial court.

My understanding was that 'Review' also has the same format mutatis mutandis as 'memo of appeal' and also there is no any other definition of 'appeal' as well as 'appeallable'.

Please give definition of 'appellable'.

Refer to ADV Pateria's remarks

https://www.lawyersclubindia.com/forum/Definition-of-Appeal-appealable-appellate-Court-in-CPC-32382.asp

Also there are provision of stay of execution in appealling process/appellate jurisdiction. But code is silent on stay of execution in 'review jurisdiction'

Review applicant can't be left Remedyless in such scenario if he seeks 'stay of execution' until review petition is decided.

Please, Please reply and give your expert comments.

Thanks.

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2 Replies

niranjan (civil practice) 26 April 2011

In my opinion when decree is passed,the samecourt can stay execution of its own decree under o.41 (5)(2) and that apploicationn is tobe made on the very day when judgment is declared. If you failed to submit such application,in that case your approach is right i.e. to submit review application alongwith order 4l rule 5(1) as format of appeal will apply to review applicationl. I also think that you should also mention sec.151 alongwith above provision.Review application can be filed in appelable(where appeal is allowed) or where no appeal is allowed(non appellable order).

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Damayanti (Unemployed) 27 April 2011

Thanks a lot,

The stament "Application is to be made on the very day when judgment is declared." ...

It means that ... stay may be filed immediately and well before one decides whether one would go for review or appeal or writ etc.

On the same days one may not even exactly know whether appeal lies or not or what recource one may choose to challenge the order.

But so as not to get into 'trap of limitation' and to avoid the steps of 'cononation of delay' , it is always advisable to ask for stay because the judgment debter is aggrieved due to decision.

Am I reading your reply correctly. Sir?

Actually Same thing happened to me.

I wasn't sure whether I would go for review or writ or whether appeal lies or not.

So I applied for stay of execution first on 27th day and review on 29th day as per limitation (by taking the matter on board for urgency on that day).

Hence in addition to O 21 R 29 I also added O41 R5 but fergot to mention sec 151 on stay application.

I believe I can mention it during argument of stay.