Deergh Uppal
If one were to ask a plaintiff in a civil suit, especially one who wants to reclaim his own property from an encroacher, landlords, licensees, or those to whom he (or his ancestors) had given the property gratuitously, a decade is a typical time span.
In the case of an immovable object, a lucky applicant receives a decree of ownership. What choices would he have now? He has custody of such documents with court permission, rather than the actual building. To get the real estate, he has to take more action. He’ll have to file an appeal with the court for the decree’s implementation. At the same time, the person in occupation will be behaving to protect his own interests while denying the legitimate relief to the property’s original owner (plaintiff).
Rule 26 of Order 21 contains provisions for a stay of execution of a decision. This law states that if adequate cause is shown and the judgment-debtor provides protection or complies with any requirements put on him, the executing court shall stop the execution of the decree for a reasonable period to allow the judgment-debtor to appeal to the court that issued the decree or to the appellate court for an order to stay execution.
The power to stay is not the same for the court that issued the order and the court to which it is moved for execution. The transferee court can only postpone the execution of the decree by a sufficient period of time to enable the judgment debtor to appeal to the transferor court or the appellate court for a stay of execution, although the transferor court can issue an immediate stay of execution. A transferee court cannot issue a stay based on immutable powers.
There is a contrast between an injunction being stayed and an order being quashed. When an injunction is quashed, that ensures that no such order has ever been issued and that the situation has been restored to the way it was before the order was issued. However, a stay of order means that the order is still in effect, but its execution has been halted.
Order-21 Rule-26
The Act states that – “When Court may stay execution-(1) 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 to any Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution, or for any other order relating to the decree or execution which might have been made by such Court of first instance or Appellate Court if execution had been issued thereby, or if application for execution had been made thereto.”
This Rule seems to apply to four different courts. First, the court to which the order was submitted for execution; second, the court that issued the decree; and third, the court that issued the decree. The appellate court with jurisdiction over the decree is the third, and the appellate court with jurisdiction over the execution is the fourth.
The principle of fair time specified in the clause only applies to the first court, not the other courts. The clause only states that if adequate cause is shown, the first court shall issue a stay of execution for a limited period, and the object of this reasonable time is to allow a judgement debtor (JD) to secure an injunction from one of the other three courts.
Since the current court is a decretal court, it cannot be said that it falls within the scope of the first court contemplated by the above clause. The concept of “received” was envisioned by Section 38 CPC and given effect by Section 39 CPC, as well as Order 21 Rule 5 CPC.
This specifically demonstrates the distinction between a court to which the decree was returned for execution and a court to which the decree was passed. As a result, it is clear that Order 21 Rule 26 CPC’s grant of sufficient time applies only to the court to which the decision was referred for execution, not to the decretal court itself. As a result, it is clear that any JD based on this clause would not be of any assistance.
The provision of Order-21 Rule-26 CPC does not imply that the other three courts have the authority to grant a stay. Order 41 Rule 5(1) CPC gives the appellate court the right to grant a stay. Order 41 Rule 5(2) CPC gives the decretal court the right to grant a stay.
Landmark Judgments
Judhiatir v. Surendra
The primary concern is that the decree was received by a party, and he should not be denied the benefits of the decade unless there are compelling grounds to do so. Until the decree is overturned, it is in effect, and it can not be taken lightly in the event that another suit to overturn it succeeds. The declaration must be permitted to be carried out, and no stay can be issued unless an exceptional circumstance exists. And if a stay is issued, it must be on reasonable grounds that do not suffocate the earlier decree.
The proviso was introduced by the 1976 Amendment Act. It states that if the decree is for monetary payment and the court grants a stay without demanding immunity, the court must document its reasons.
Order of Injunction vs. Order of Stay: An order of injunction is different from an order of stay. The former is a court order prohibiting a person or entity from doing something. The latter is a request or subpoena to a judge to refrain from doing anything. Without authority, proceedings taken in violation of an injunction order are not null and void. Non-compliance with an injunction order can result in the individual being subject to penalty.In the other hand, proceedings taken in violation of a stay order are null and void and have no effect whatsoever.
M/S.Malwa Strips Pvt. Ltd. Vs. M/S.Jyoti Ltd.
After careful consideration of the foregoing observations, the judiciary was of the opinion that, in light of the provisions of Sub-Rule (5) of Rule 5 of Order 41 CPC, it cannot be held that an appeal against a decree for payment of money is not maintainable if filed without complying with the provisions of Sub-Rule (3) of Rule 1 of Order 41 CPC, and it is the Registry’s responsibility to ensure that on application, the provisions of Sub-Rule (3) of Rule 1 of Order 41 CPC are to be followed
If the appeal is filed against a decree for payment of money without a stay application filed under Order 41 Rule 5 CPC, the petitioner must have a notice in the memo of appeal stating his preparation and ability to comply with the Court’s instructions given under Sub-Rule (3) of Rule I of Order 41 CPC.
Ghan Shyam Das v. Anant Kumar Sinha
The Honoble Supreme Court said
In terms of the matter of a decree’s executability, the Civil Procedure Code provides detailed and comprehensive rules for dealing with it in all respects. The various laws of order XXI of the Code address a variety of cases, including appropriate solutions not only to judgement debtors and decree holders, but also to claimant objectors under such circumstances.
In extraordinary circumstances, where provisions are found incapable of providing sufficient and timely remedies to an aggrieved individual, the remedy is a routine civil court action. The redress provided by the Civil Procedure Code is of higher judicial consistency than that provided by other laws, and the Judge, who is solely responsible for the administration of justice, is required to do more.
Shaukat Hussain v. Bhuvaneshwari Devi
In terms of stay of order it was held. It is not enough for a stay to be granted under Order XXI rule 29 that the judgment-debtor has a lawsuit pending; the suit must also be brought against the holder of a decree issued by such court. The words’such court’ are critical. In the light of that rule,’such Court’ refers to the court where the suit is currently pending. To put it another way, the action must be pending not only in that court, but also against the holder of an order issued by that court. That seems to be the rule’s straightforward sense.
The court said It is true that in appropriate situations, a court can issue an injunction prohibiting a party from pursuing a lawsuit in another court. However, whether they have appellate or revisional authority, courts do not have the right to halt litigation of other courts by issuing an order directed to other courts. Clear legal requirements are needed for this.
Rule 29 explicitly demonstrates that the court’s authority to stay execution until it stems primarily from the fact that the execution is being carried out at the request of the decree-holder, whose decree was only passed by that court. It lacked the authority to stay the execution if the order in execution had not been passed by it. Law 26 emphasises this point as well.
The decree requested to be executed in this case was not the decree of the Munsif 1st Court, Gaya, but the decree of the Subordinate Judge, Gaya, which he issued in the exercise of his Small Cause Court jurisdiction.
Anop Chand v. Hirachand
According to the court, Order 21, Rule 29 is based on the premise that a judgement debtor should not be harassed if he has a substantive claim against the decree-holder pending before the Court administering the decree. The Court, which is reviewing the judgment-claim, debtor’s has all of the information on which the judgment-claim debtor’s is based, and if the Court believes that the claim has any merit, it may order a stay of the execution filed by the defendant in that case, on certain terms of protection or otherwise.
The judgment-only debtor’s option is to file an appeal with the Court, drawing the Court’s attention to the fact that his case is pending and requesting a stay of the execution filed by his defendant. It is difficult to believe that Order 21, Rule 29 by itself vests some equity in the judgment-debtor, in our view.
The equity, if any, may occur after the Court has issued a stay of execution order, but before that order is issued, the mere fact that the judgment-debtor has filed a suit against the person who holds a decree against him cannot have the effect of vesting any equity in that person so as to affect the assignment of the decree obtained by the judgment-debtor.
The transferee is subject to the equities that the judgment-debtor has against the original decree-holder under section 49 of the Code of Civil Procedure, and such equities must remain at the time of the transfer, according to our understanding. By virtue of Order 21, Rule 29, we do not believe it is possible for us to hold that Mishrimal had any such equity at the time of the move. This clause is also unavailable to Mishrimal since his case was pending in a court other than the one where the decree was being carried out.