Law: Civil Procedure Code (V of 1908)

Section: O.XLI,r.5,545,173,174,175,176,177,178

(a) Civil Procedure Code (h of 1908), O. XLI, r. 5-Stay order­---Whether it takes effect from the moment it is made or from the moment it is communicated to executing Court. Both on principle and authority as well as on a plain construction of Order XLI, r. 5, the answer to the question referred is that a stay order under O. XLI, r. 5 operates from the time that such order is made and not from time it is communicated to the executing Court. Rule 5 enacts two distinct provisions, the first directing that an appeal by itself does not operate as a stay of proceedings under a decree or order appealed from, except so far as the Appellate Court may order, and the second providing that execution of a decree shall not be stayed by reason only of an appeal having been preferred from it but that on sufficient cause being shown the Appellate Court may order stay of execution of the decree. Thus both the provision's enact two different general rules which are followed by two different exceptions, the general rule in either case being that an appeal shall not operate as a stay of further proceedings under the decree appealed from. But when a case comes within the exception, the order of stay to the extent that it is within the exception, suspends the operation of the general rule and automatically brings about a stay of those proceedings pro tanto. I L R 33 Cal. 927 relied on ; I L R 41 Mad. 151 dissented from 1 Cal. W N 226 ; 15 C L J 335 ; I L R 33 Mad. 74 ; I L R 38 Mad. 766 ; A -I R 1926 All. 457 ; I L R 50 All. 41 ; I L R 11 Rang. 410 referred to 411 C 752 ; A I R 1943 Lah. 349 distinguished (b) Civil Procedure Code (V of 1908) O.-XLI, r. 5---Stay order---Jurisdiction of executing Court to take further proceedings in execution­---Excluded the moment order is recorded. On a purely grammatical construction of this rule, it, must be held that the jurisdiction of the Court to take further proceedings or, execu­tion proceedings under a decree appealed from is excluded the moment an order staying such proceedings recorded, and that this exclusion does not depend on anything other that the making-of the order. It is true that the execution of a decree is matter resting…

Deprecated: trim(): Passing null to parameter #1 ($string) of type string is deprecated in /home/digixyei/sldsystempk.com/view/master-layout/view_case.php on line 492