Updated legal guidance and a practical draft for seeking interim stay when filing an appeal from an appealable order under Section 104 and Order XLIII of the Code of Civil Procedure, 1908.
Order XLIII Rule 1 CPC specifies the orders from which an appeal lies under Section 104 of the Code of Civil Procedure, 1908. When an appellant needs interim protection against the operation, execution or consequences of the impugned order during the pendency of that appeal, a separate stay application may be filed before the appellate court.
The filing of an appeal does not by itself suspend the order under challenge. The applicant should therefore specifically seek interim relief and explain why protection is necessary until the appeal is decided.
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Section 104 CPC provides for appeals from specified orders. Order XLIII Rule 1 identifies the appealable orders. Under Order XLIII Rule 2, the rules of Order XLI apply, so far as may be, to appeals from orders.
Order XLI Rule 5 governs stay by an appellate court. In substance, an appeal does not automatically operate as a stay; the court may grant stay for sufficient cause and, where applicable, considers matters such as substantial loss, promptness of the application and security.
Section 151 CPC preserves the inherent powers of the court to make orders necessary for the ends of justice or to prevent abuse of process. It may support an appropriate interim-relief prayer, subject to the express provisions of the Code.
This specimen is a general drafting model. Court nomenclature, jurisdiction, cause title, case type, filing requirements, affidavit, court fee and local rules must be adapted to the court in which the appeal is filed.
IN THE COURT OF __________________ AT __________________ CIVIL MISCELLANEOUS APPLICATION NO. ____ OF 20__ IN APPEAL FROM ORDER / FAO / MISC. APPEAL NO. ____ OF 20__
IN THE MATTER OF:
VERSUS
APPLICATION UNDER ORDER XLI RULE 5 READ WITH ORDER XLIII RULE 2 AND SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908 FOR STAY OF THE IMPUGNED ORDER
MOST RESPECTFULLY SHOWETH:
1. That the appellant/applicant has filed the accompanying appeal against the order dated __________ passed by the Court of __________ in __________ Case/Suit No. __________, whereby ________________________________________________.
2. That the facts and grounds set out in the accompanying memorandum of appeal may be read as part of this application and are not repeated in detail for the sake of brevity.
3. That the respondent had instituted proceedings seeking ________________________________________________, and during the pendency of those proceedings an application for interim/temporary injunction or other interim relief was filed.
4. That by the impugned order dated __________ the learned court below ________________________________________________. A copy of the impugned order is filed with the appeal as Annexure/Document No. __________.
5. That the appellant has a strong prima facie case in appeal, inter alia, because ________________________________________________.
6. That unless operation / implementation / execution of the impugned order is stayed, the appellant is likely to suffer substantial and irreparable loss inasmuch as ________________________________________________.
7. That the present application has been made without unreasonable delay. The balance of convenience also lies in favour of preserving the subject matter and maintaining an appropriate interim arrangement until disposal of the appeal.
8. That the appellant/applicant is ready to comply with any reasonable condition or furnish such security as this Hon'ble Court may direct, where required under law and the facts of the case.
9. That no prejudice incapable of compensation will be caused to the respondent if interim protection is granted; whereas refusal of stay may render the appeal ineffective or cause serious prejudice to the appellant/applicant.
PRAYER
In view of the facts and circumstances stated above, it is most respectfully prayed that this Hon'ble Court may be pleased to:
(a) stay the operation, implementation and/or execution of the impugned order dated __________ passed by the Court of __________ in __________ Case/Suit No. __________ during the pendency of the accompanying appeal;
(b) grant an ad interim stay in terms of prayer (a) pending notice and final disposal of this application; and
(c) pass such other or further order(s) as this Hon'ble Court may deem fit and proper in the interests of justice.
AND FOR THIS ACT OF KINDNESS THE APPELLANT/APPLICANT AS IN DUTY BOUND SHALL EVER PRAY.
Order XLIII Rule 1 lists the categories of orders that are appealable under Section 104 CPC. The principal currently operative categories include the following:
Rule 1A permits specified objections to certain non-appealable interlocutory orders to be raised in an appeal against the eventual decree, including objections concerning the recording or refusal to record a compromise, subject to the terms of the Rule.
Rule 2 makes the rules of Order XLI applicable, so far as may be, to appeals from orders. This is the link through which the appellate-stay mechanism in Order XLI Rule 5 applies to an Order XLIII appeal.
Courts that have adopted the national e-Filing platform permit electronic filing of cases and applications, uploading pleadings, e-signing and online payment of court fees. Availability and local filing requirements vary by court.
Official e-Filing Services eCourts Case Services
No. An appeal does not automatically operate as a stay. Interim protection should be specifically sought from the competent appellate court.
Ordinarily, cite Order XLI Rule 5 read with Order XLIII Rule 2 CPC. Section 151 CPC may also be cited where its inherent jurisdiction is appropriately invoked.
The structure is general. The cause title, nomenclature of the appeal, affidavit, court fee, formatting, filing mode and procedural requirements must be adapted to the concerned court and its applicable rules.
