What is meant by a stay of execution? When may a Court stay the execution and upon what conditions?

Question: What is meant by a stay of execution? When may a Court stay the execution and upon what conditions?[BIHAR J 2000, UPCJ 1997]

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Answer

Execution is the culmination of the suit. It is its final stage and the means that are employed in due process of law to make a decree or order of a Court effective. The stay of execution, therefore, means suspension of the act of completing or carrying into effect the decree or order of a Court. Execution proceedings are commenced when the successful party makes an application in writing to the execution Court.

When execution is stayed the proceedings, started by the successful party, or an application to the executing Court, are pended pending further orders of the Court. Stay by Appellate Court an appeal does not operate as a stay of the proceedings under a decree or order appealed from, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree. The appellate Court, however for sufficient cause, ordered a stay of execution to have stayed.

Stay by the Court which passed the decree-Where an application is made for stay of execution of the appealable decree, before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown, order the execution to have stayed. No order for stay of execution shall be made by the appellate Court, or Court passing the decree as aforesaid unless the Court making it is satisfied.

1. That substantial loss may result in the party applying for a stay of anion unless the order is made.
2. That the application has been made without unreasonable delay; and
3. That the security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.

Notwithstanding anything contained above, according to the provision of Order. 41, Rule. 5 of the C.P.C. the court may make an ex-parte order for stay of execution pending the hearing of the application. Under Order. 21, Rule. 26 of the Code the Court to which a decree has been sent or 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 Court by which the decree was passed or an appellate court for an order to stay the execution. Before making an order to stay execution the Court may require such security from the judgment debtor as it thinks fit.

Under Order 21, Rule 29 of the Code of Civil Procedure the Court may, on security or otherwise, stay execution of a decree until the decision of the pending suit filed by the judgment by the debtor, against the decree-holder. In a Supreme Court appeal, the High Court may stay the execution of the decree appealed from, taking such security from the appellant as the Court thinks fit for the due performance of to the decree appealed from, or any order which the Supreme Court may make on the appeal. The High Court has also the power to stay execution in view of an application to the Supreme Court for Special Leave.

In summary, suit, if the defendant has not applied for leave to defend if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith. But the Court may, after decree under special circumstances, stay the execution and give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do and on such terms as the Court thinks fit.

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