Minkie (Service) 11 August 2009

Stay of Decree pending filing of First Appeal

The Suit which we filed is decreed last week but it will take at least 2 weeks for the certified copy to be available. Now the defendants have moved application before the trial court seeking 12 weeks stay of judgment and decree to enable them to file FA in the High Court.

I understand that the limitation period for filing FA against decree is 90 days. So what are the grounds that we can oppose staying of the decree.

Can we ask for any conditions such as that during the pendency of the stay, the defdts. be restrained from creating right etc or alienating the Suit property?

Can we insist that the stay be for a shorter period say 6 weeks instead of 12 weeks?

Any judgments in support?

Thanks in advance.

Reply Follow

5 Replies

R.R. KRISHNAA (Legal Manager) 11 August 2009

You can formally oppose the application for stay. Usually courts give stay in such situations for the reason that first appeal is expected to be preferred. There is nothing much you can do about that. More over the matter is pending in court. No one would purchase the property which is subject of dispute before the court. But for the sake of your satisfaction you can ask an undertaking from the defendant to be given to the court that they will not alienate the property in case if stay is to be granted.

Minkie (Service) 11 August 2009

Thanks.

I was just going through CPC O.41 R.5[2] &[3] and also the judgment in Atma Ram Properties v. Federal Motors 2005(1 )SCC705

Yes, you are right, we will insist on an appropriate undertaking.

shiv shanker bala narayanan (advocate) 11 August 2009

there is one kerala judgement i will give the citataion see the stay of decree by the trial court is not automatic the defendant must have applied for the certificate of judgement within 48 hours of the decree otherwise he looses his right to seek a stay aand he shud mention the samme in the stay petition go thru ur states civil rules of practice too

Minkie (Service) 13 August 2009

Thanks. Atma Ram is quite a good judgment. The hearing is next week. They have applied as have we, for the certified copy, but they have not pleaded any sufficient cause, substantial loss, nor offered any security, so I have prepared my reply accordingly. Anyway, I am sure the court will agree to impose stringent conditions even if they do grant the stay. Will update after next weeks hearing.

Nali Seshu Kumar (SOCIAL WORKER) 19 December 2009

first lodge a caveat in high court ,there after strongly oppose the stay appluication the appellate court has every right to take precautions of the both parties as the appeal is the continuation of suit such a situation both paties have right to support their pleadings already you have decree you can file e.p immidiately after c.a there after definately conditional orders are supposed to be expect any how limitation for 1st appeals in 30days only ,seeking stay on the same court is not at all helpful.