Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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shivani (housewife)     13 February 2022

Stay application

Plaintiff has filed an execution in the trial court, it's listed for nazeer report, immediately i moved a stay application in high court, on the first hearing judge didn't grant a stay, but HC judge has issued notice and has asked the opposite side to file a reply in one month, my query is ,as soon as I receive the execution notice from trial court, so on the first hearing can i request the trial court to wait for sometime since the stay application is pending in high court ,will the trial court judge consider this point ?



Learning

 8 Replies

Adv. Mohit Chahal (Advocate)     13 February 2022

Dear Querist

I believe you have filed an Appeal against the Decree well in time.

Pending stay application at High Court is not a good ground for seeking adjournment.

Execution is not maintainable till the time Decree has attained its finality.

You may seek an adjournment for filing reply to execution application.

Regards
Mohit Chahal
Advocate
District & Sessions Court, Hisar
Phone No. 9968911099

https://mohitchahaladvocate.business.site


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shivani (housewife)     13 February 2022

@mohit  chahal- sir I have moved for stay application in high court against the execution petition , as of now notice has not been sent to me ,I saw on the website that the opposite side has moved an execution petition, it's listed for Nazir report, in the meanwhile I immediately filed for a stay application in high court, on the first hearing judge did not grant a stay but he has issued notice to the opposite side asking for there reply in next one month

Manpreet Kaur (advocate)     14 February 2022

yes you can inform trial court that an appeal is pending. However, this is on High Court discretion they might impose a condition upon you to grant any kind of stay on execution.

Shubham Bhardwaj (Advocate)     14 February 2022

Dear Ms Shivani, 

The trial court is not bound to accept your request for adjourning th execution proceedings just because a stay application is pending. The law in this regard is very clear that untill and unless a decree is not stayed, mere filing appeal will not act act as a stay. Please refer Order 41 Rule 5 CPC. 

However, sometimes judges grant a date till disposal of stay application if the other side doe not press. 

Regards

Shubham Bhardwaj (Advocate)

District & Session Court, Chandigarh

Punjab & Haryana High Court, at Chandigarh

Disclaimer:- Opinion is only for guidance. 

1 Like

Dr J C Vashista (Advocate)     15 February 2022

I fully agree and appreciate proper analyses, opinion and advise of expert Mr. Shubham Bhardwaj.

There is no stay of proceeding granted by High Court, hence Executing Court is not bound to oblige your request to adjourn/ wait for orders on the appeal.

You have the option to move objections in Execution petition through your lawyer, if you are JD. 

shivani (housewife)     15 February 2022

Thanks to all of the above for valuable advice. I will try and convey the trial court about the pending stay application on merits, rest is upto the judge only , eventually I will file objections in the execution petition , yes am the JD in the case , have seen many execution cases online, JD manages to drag the execution petition for 2-3 years atleast..

P. Venu (Advocate)     15 February 2022

It appears that you are yet to recive the notice in the EP. The execution cannot proceed without notice to you. In the meanwhile, you may try to secure a stay from the Appellate Court.

shivani (housewife)     15 February 2022

@Venu sir- thank you for an advice. Yes am yet to receive the execution notice, will raise objections there, will try to take a stay from the high court but twice hv judge has not granted a stay to me by saying that there are many judgements which says that if husband is offering rent amount then wife has to stay on rent, i did file an application for stay on execution but judge has only issued notice to the opposite side to file a reply, has not granted stay yet, proceedings are pending on the stay application

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