Injunction in CPC

For Beyond Law C.L.C. Different Types of Stay Applications under C.P.C.
Different Types of Stay Applications under C.P.C.

Injunction is an order/decree of the court to direct someone to do or refrain
from doing something, they are perpetual, mandatory, temporary, ad-interim
Injunctions.
Ad interim Injunction - Till the disposal of Interlocutory Application (I.A.)
Temporary Injunction - Till the disposal of the suit
Perpetual or in colloquial permanent Injunction - Life time
Difference between Injunction and Stay:-
On the other hand, Stay is an order forbidding some action until an event
occurs or the order is lifted. It is also to be noted that there must be an order or
injunction or decree or judgement to grant stay, otherwise the question of stay
does not arise.
Stay can be granted only against an order in force, which is passed by the
court.
The Hon’ble supreme Court of India in Mulraj Vs Murti Raghonathji

Maharaj, AIR 1967 SC 1386, held as follows:-
“An order of injunction is generally issued to a party and it is forbidden

from doing certain acts. It is well-settled that in such a case the party must
have knowledge of the injunction order before it could be penalised for
disobeying it. Further it is equally well-settled that the injunction order not
being addressed to the court, if the court proceeds in contravention of the
injunction order, the proceedings are not a nullity. In the case of a stay order,
as it is addressed to the court and prohibits it from proceeding further, as soon
as the court has knowledge of the order it is bound to obey it and if it does not,
A.S.Ravi, Addl. District Judge and A.S.Raja, Senior Civil Judge, Tamil Nadu 10th day of August 2020 1 of 29
it acts illegally, and all proceedings taken after the knowledge of the order
would be a nullity. That in our opinion is the only difference between an order
of injunction to a party and an order of stay to a court. In both cases
knowledge of the party concerned or of the court is necessary before the
prohibition takes effect”.
On March 28, 2018, in Asian Resurfacing of Road Agency Pvt. Ltd. &
Another Vs Central Bureau of Investigation (2018 SCC OnLine SC 310), a
landmark case taken up by Three-Judge Bench of the Hon’ble Supreme Court
the seminal issue that was taken up by the Court was:
Whether the inherent powers of High Courts are available to stay proceedings
under the Act under Section 482 of the Code of Criminal Procedure?
The Division Bench held that even if a petition under Section 482 of Cr.P.C. or
a writ petition under Article 227 of the Constitution of India is maintainable,
under no circumstances an order of stay should be passed in view of the
prohibition contained in Section 19(3) (c) of the PC Act.
The Hon’ble Supreme Court Bench in that case, made a significant verdict by
directing that in all pending cases where stay against proceedings of a civil or
criminal trial is operating, the same will come to an end on expiry of six
months from today unless in an exceptional case by a speaking order such stay
is extended.
Factors to be considered, while granting Stay:-
Recently, on 25th November 2019 also, In a writ appeal filed by the State of
Mizoram in respect of a Lottory case, the Bench of Justices Deepak Gupta and
Aniruddha Bose, in a judgment speaking for the Hon’ble Supreme Court, has
outlined three aspects, it usually considers while granting a stay order, said the
three include:-
1. The balance of convenience does not favour the alleged violator;
2. The stay order does not cause irreparable harm or injury; and
3. There should be a prima facie case for granting the stay order.
Thus, in all cases, while granting stay, the courts have to consider prima facie
case, balance of convenience and the stay order does not cause irreparable
harm or injury.
Under CPC Civil Court has got jurisdiction to grant stay in various
circumstances, namely
1. Sec.10
2. Order 6 Rule 14A(5)
3. Order 21 Rule 26
4. Order 21 Rule 29
5. Order 21 Rule 53
6. Order 21 Rule 59
7. Order 30 Rule 2
8. Order 32 Rule 10
9. Order 35 Rule 3
10. Order 37 Rule 4
11. Order 37 Rule 5
12. Order 41 Rule 5(1)
15. Order 45 Rule 11
16. Order 45 Rule 13
17. Order 45 Rule 14(2)
18. Order 46 Rule 2
19. Sec.94(e) and Sec.151, if no relevant provision
I have also highlighted the word Stay in all the provisions in bold letters.
Sec.10 Stay of suit:- No Court shall proceed with the trial of any suit in which
the matter in issue is also directly and substantially in issue in a previously
instituted suit between the same parties, or between parties under whom they
or any of them claim litigating under the same title where such suit is pending
in the same or any other Court in India having jurisdiction to grant the relief
claimed, or in any Court beyond the limits of India established or continued by
the Central Government and having like jurisdiction, or before the Supreme
Court.
Points:-
1. There must be two suits at the stage of trial in the same court or in two
different civil courts in India up to Supreme Court or courts established
by Central Government
2. Both courts shall have jurisdiction to grant the relief claimed in both
suits
3. It cannot apply to proceedings of other nature instituted under any other

statute, namely before Tribunal, Writ, Criminal Case, Consumer Court,
etc.,
4. Issues in both suits must be directly or substantially same
5. It must be between the same parties, or litigating under the same title –
Legal representatives, subsequent purchasers, etc.,
6. In such case, the subsequent suit shall be stayed.
Object underlaying Sec.10:-
• To avoid two parallel trials on the same issue by two courts
• To avoid recording of conflicting findings on issues, which are directly

and substantially in issue in previously instituted suit.
• To prevent courts of concurrent jurisdiction from simultaneously trying

two parallel suits between the same parties in respect of the same matter
in issue.
Object underlaying Sec.10:-
 To avoid two parallel trials on the same issue by two courts
 To avoid recording of conflicting findings on issues, which are directly

and substantially in issue in previously instituted suit.
 To prevent courts of concurrent jurisdiction from simultaneously trying

two parallel suits between the same parties in respect of the same matter
in issue.
Fundamental Test to attract Sec.10:-
 Whether on final decision being reached in the previous suit, such

decision would operate as res-judicata in the subsequent suit.
 Whether the whole of the subject-matter in both the suits is identical.
How to under stand Sec.10:-
1. The stay can be granted only in the subsequent suit under Sec.10.
2. The stay cannot be granted in the previous suit, merely because the
subsequent suit is filed under this section.
3. If previous suit is comprehensive suit and new/subsequent suit is bare

injunction suit, then application of Sec.10 would be proper.
4. If previous suit is bare injunction suit and new/subsequent suit is

comprehensive suit, then application of Sec.10 would be a farce.
The key words in Section 10 are “the matter in issue is directly and
substantially in issue” in the previous instituted suit. The words “directly and
substantially in issue” are used in contradistinction to the words “incidentally
or collaterally in issue. Therefore, Section 10 would apply only if there is
identity of the matter in issue in both the suits, meaning thereby, that the
whole of the subject-matter in both the proceedings is identical. National
Institute of Mental Health & Neuro Sciences Vs C.Parameshwara (2005) 2
SCC 256
Civil suit filed challenging the execution of Will and proceeding for Probate was
filed subsequently. The Supreme Court held that the subsequently instituted
proceedings could not conclude the probate proceedings. Sec.10 was not
applicable. Balbir Singh Wasu Vs Lakhbir Singh 2005 12 SCC 755
Order VI Rule 14A (5) Address for service of notice—
Where the registered address of a party is discovered by the court to be

incomplete, false or fictitious, the Court may, either on its own motion, or on
the application of any party, order—
(a) in the case where such registered address was furnished by a plaintiff, stay
of the suit, or
(b) in the case where such registered address was furnished by a defendant, his
defence be struck out and he be placed in the same position as if he had not
put up and defence.
(6) Where a suit is stayed or a defence is struck out under sub- rule (5), the
plaintiff or, as the case may be, the defendant may, after furnishing his true
address, apply to the Court for an order to set aside the order of stay or, as
the case may be, the order striking out the defence.
(7) the Court, if satisfied that the party was prevented by any sufficient cause
from filing the true address at the proper time, shall set aside the order of stay
or order striking out the defence, on such term as to costs or otherwise as it
thinks fit and shall appoint a day for proceeding with the suit or defence, as the
case may be.
(8) Nothing in this rule shall prevent the Court from directing the service of a
process at any other address, if, for any reason, it thinks fit to do so.
Points:-
 If the court finds that the registered address filed by the parties are
incomplete, false or fictitious, may either on its own motion or on
application
 If filed by plaintiff – stay the suit
 If filed by the defendant – stuck off the defence
 After true address is furnished, the court may set aside the order of stay
or order of stuck off on the application of the respective parties
 If the court satisfied that the party was prevented by any sufficient cause
from filing the true address at the proper time, the court may suo moto
also set aside the order with or without costs
 The Court may also order directing the service of a process at any other
address, if, its thinks fit
Gagan Kakkar Vs Dharampal Chhabra on 22 July, 2015 (Delhi High Court)
Order XXI Rule 26 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.
(2) Where the property or person of the judgment-debtor has been seized under
an execution, the Court which issued the execution may order the restitution of
such property or the discharge of such person pending the result of the
application.
(3) Power to require security from, or impose conditions upon, judgment-debtor

—Before making an order to stay execution, or for the restitution of property
or the discharge of the judgment-debtor, [the Court shall require] such security
from, or impose such conditions upon, the judgment-debtor as it thinks fit.
Sec.38 Court by which decree may be executed:-
1. By the Court, which passed the decree/Trial Court or
2. By the Court, to which it is sent for execution under Order 21 Rule 5
When Stay may be granted by the court to which a decree has been sent
for execution under Order 21 Rule 26:-
1. If certified copies are not furnished to the J.D. or
2. Appeal time is not completed
Which Court can grant stay under Order 21 Rule 26:-
Only the court to which a decree has been sent for execution, namely the the
court to which decree has been transmitted under Order 21 Rule 5 of C.P.C. or
transferee court.
Which Court cannot grant stay under Order 21 Rule 26:-
Court/Tribunal which passed the decree or the same court, which is going to
execute court
What is the remedy for the Judgement Debtor to get stay against whom a
contested decree is passed, if decree has not been transmitted:-
1. Under Order 41 Rule 5(2) before Trial Court/which passed the decree
2. Under Order 41 Rule 5(1) before the Appellate Court
What is the remedy for the Judgement Debtor to get stay against whom
exparte decree is passed, if decree has not been transmitted:-
Under Order 41 Rule 5(2) before Trial Court/which passed the decree, when an
application is filed under Order 9 Rule 13 of C.P.C. or along with an application
Sec.5 of Limitation Act. Thus, the J.D. cannot file an application before the
executing court under Order 21 Rule 26 of C.P.C., it is not transferee court.
Stages, where stay application to be filed:-
1. Stay the operation of the decree - On the date of pronouncement of

judgement – Trial Court – Till copies are furnished
2. Stay the operation of the decree – after obtaining copies – Appellate Court
3. Stay of execution – if copies are not furnished – the court, to which the
decree is sent for execution
4. No stay application is maintainable – before trial court cum executing

court, which passed the decree
When, where, how and which under Order 21 Rule 26 and Order 41 Rule 5
of C.P.C. provision stay application to be filed:-
S.No. When to be Where to be Provision of Reason for filing

filed filed & When Law to used stay application
not
maintainable
1. From the date Court which Order 41 Rule Stay for operation
of passed the 5(2) of the decree &
pronouncement decree (If Judgement as
of Judgement certified copies going to prefer an
till appeal time are furnished appeal
is completed and appeal time
is completed, it
is not
maintainable)
2. On the date of Appellate Court Order 41 Rule Decree Holder is

filing of an (if filed before 5(1) attempting to
Appeal and executing court execute the
subsequently as appeal or decree through
second appeal is executing court
pending, it is
not
maintainable)
3. After execution Trial Court, Order 41 Rule Decree Holder is

application is which passed the 5(2) attempting to
filed by the decree (if filed execute the
Decree Holder before exparte decree
based on the executing court, through
Exparte Decree it is not executing court,
maintainable) but set aside
application is
pending
4. After execution Trial Court, Order 41 Rule Decree Holder is

application is which passed the 5(2) attempting to
filed by the decree execute the
Decree Holder exparte decree
(if filed before
based on the through
executing court,
Exparte Decree executing court,
it is not
but Sec.5
maintainable)
Limitation Act is
pending
5. If the decree Execution Court Order 21 Rule 26 Certified Copies

has been (If it is not have not been
transmitted transmitted furnished so far
under Order 21 E.P., this by the trial
Rule 5 and after application is court/court
execution not which passed the
application is maintainable decree and he is
filed by the before the court going to prefer an
Decree Holder which passed appeal
the decree and
same court is
also an
executing court)
6. If the decree Execution Court Order 21 Rule 26 Certified Copies

has been have been
(If it is not
transmitted furnished by the
transmitted
under Order 21 trial court/court
E.P., this
Rule 5 and after which passed the
application is
execution decree, but
not
application is appeal time has
maintainable
filed by the not been
before the court
Decree Holder completed and he
which passed
is going to prefer
the decree and
an appeal
same court is
also an
executing court)
7. After an order Execution Court No such Stay for operation

has been (If appeal or provision, but of the order as
passed by the revision is Sec.94 (e) and going to prefer an
executing court pending, this 151 may be used appeal/revision
on merits, application is
namely delivery, not
attachment, maintainable)
sale, arrest,etc.,
K.Lakshmiammal Vs D.S.Nagalakshmi 2012 (3) MWN (Civil) 66
A.Devarajan Vs Thulasimani on 4 October, 2013
G.Arumugam Vs P.Jayaraman 2014 (1) CTC 246
The Anthiyur Town Panchayat rep. by its Executive Officer, Anthiyur Vs

G.Arumugam (Deceased) & Others 2015 (2) CTC 598, 2015 (2) MWN(Civil)
238
R.Senthilkumar Vs S.Ayyalusamy dated 16 February, 2016
G.Suresh Mohan Vs S.Lilly 2010 (4) L.W. 512
A mere poring over and perusal of that provision cited supra would amply
make the point clear that the transferee Court in certain circumstances has got
the right to stay the execution. But here the Executing Court and the Court
which passed the decree in the suit are one and the same. In such a case,
Order 41 Rule 5 of CPC would be the proper provision of law. It is quite obvious
and axiomatic that Order 41 Rule 5 of CPC could not be pressed into service for
the simple reason that admittedly the appeal time was over long ago.
M/s. Hotel Supreme Private ... Vs P.Kannan CJD 2013 MHC 5274
Order 21 Rule 26 of Civil Procedure Code deals with the power of the Court to
which a decree or award has been sent for execution to stay the execution
proceedings for a limited time so as to enable the judgement debtor to apply to
the Court/Tribunal which passed the decree or award or the appellate Court
for stay of execution of the decree. The said provision cannot be invoked in the
Court/Tribunal which passed the decree/award itself is executing the decree.
In such cases, the application should not have been filed on the execution side
and such application should have been filed on the trial side. The proper
provision is Order 41 Rule 5(2) of Civil Procedure Code. Or else the Petitioner
would have filed an appeal and sought the order of stay in the appellate Court
under Order 41 Rule 5 of Civil Procedure Code.
Order 21 Rule 29 Stay of execution pending suit between decree-holder

and judgment-debtor— Where a suit is pending in any Court against the
holder of a decree of such Court [or of a decree which is being executed by such
Court], on the part of the person against whom the decree was passed, the
Court may, on such terms as to security or otherwise, as it thinks fit, stay
execution of the decree until the pending suit has been decided :
Provided that if the decree is one for payment of money, the Court shall, if it
grants stay without requiring security, record its reasons for so doing.
The purpose of Order 21, Rule 29 C.P.C. is to prevent
(1) the judgment debtor being compelled to satisfy the decree by providing the
sum due when it might be proved (after his claim against the decree-holder was
finally determined) that on balance, he owed the decree-holder less than the
decretal sum of, it might be, nothing at all, and
(2) to avoid multiplicity of execution proceedings.
To stay the execution of the decree, the following conditions must be

satisfied viz.:-
a) there must be simultaneous proceedings;
b) an execution by the decree holder must be pending against the judgment

debtor;
c) the judgment debtor must have filed a suit against the decree holder; and
d) the said suit must be pending.
Even assuming that simultaneous proceedings are pending and even all the
conditions of Order XXI Rule 29 CPC get satisfied, still staying the execution of
the decree is not automatic, as the Execution Court has to exercise its
discretion whether by staying the decree, great injustice would be caused to the
decree holder or not. Rule 29 of Order 21 Civil Procedure Code, is not an
imperative one and the court as a matter of exercise of its discretion can either
grant the stay asked for or refuse the same.
Shaukat Hussain Vs Bhuneshwari Devi (1972) S.C.C. 731: (1973) 1 S.C.R.

1022 : A.I.R. 1973 S.C. 528
Usha Sinha Vs Dida Ram A.I.R. 2008 SC 1927
Balammal Vs Muthiar Begum on 22 November, 2012
https://indiankanoon.org/doc/28592824/
Order 21 Rule 53 Attachment of decrees— (1) Where the property to be

attached is a decree, either for the payment of money or for sale in enforcement
of a mortgage or charge, the attachment shall be made,—
(a) if the decrees were passed by the same Court, then by order of such Court,
and
(b) if the decree sought to be attached was passed by another Court, then by
the issue to such other Court of a notice by the Court which passed the decree
sought to be executed, requesting such other Court to stay the execution of its
decree unless and until—
(i) the Court which passed the decree sought to be executed cancels the notice,
or
(ii) the holder of the decree sought to be executed, or his judgement debtor, if
he has obtained the consent in writing of the decree holder or the permission of
the attaching court, applies to the court receiving such notice to execute the
attached decree.
(c) If the decree sought to be attached has been sent for execution to another
court, the court which passed the decree shall send a copy of the said notice to
the former court, and thereupon the provisions of Clause (b) shall apply in
same manner as if the former court had passed the decree and the notice had
been sent to it by the court which is used it.
Two Stages:-
1. Assuming that A filed an execution proceedings against B and B filed an

execution proceedings against C in the same court. Then A can file an
application to attach the decree, which was obtained by B against C.
2. If A filed an execution proceedings against B in Coimbatore and B filed

an execution proceedings against C in Meeruit. Then A can file an
application to attach the decree, which was obtained by B against C,
which is pending in Meeruit. In such a case, after attachment, a notice
will be sent to court at Meeruit to stay the proceedings initiated by B
against C. As soon notice is received the court at Meeruit shall stay the
proceedings under Order 21 Rule 53.
How to vacate the stay:-
 When the court at Coimbatore cancels the notice or
 When the decree holder/A applies or
 When the J.D./B, by producing consent of the decree holder in writing,

applies to the court at Meeruit
 When the J.D./B by obtaining the permission of the Coimbatore Court,

applies to the court at Meeruit
This rule have been divided into two classes, namely -
1. decree for the payment of money or for sale in enforcement of a mortgage or

charge and
2. other decrees
When the court which, passed the decree is different from the court whose
decree is to be attached, a notice to be sent by the court which passed the
decree to the court to which decree has been sent for execution to stay the
execution of the decree
The object of the stay is to prevent the holder of the attached decree from
realising or taking away the proceeds of the decree. As pointed out by the Privy
Council in Mahalingam Chettiar Vs Ramanathan Chettiar AIR 1940 PC 173 (A),
a request made under Order 21 Rule 53 (1) (b) is a mere request. The rule does
not purport to prohibit the Court to which it is addressed from executing the
decree unless the conditions contained in the re-quest are fulfilled. The object
of the request is to ensure that the holder of the decree does not himself
proceed to execution without the leave of the Court making the attachment."
Firm Deochand Pannalal and Others Vs Shubhkaran Shivdeoji A.I.R. 1957

MP 9
Order 21 Rule 59 Stay of sale— Where before the claim was preferred or the
objection was made, the property attached had already been advertised for
sale, the Court may—
(a) if the property is movable, make an order postponing the sale pending the
adjudication of the claim or objection, or
(b) if the property is immovable, make an order that, pending the adjudication
of the claim or objection, the property shall not be sold, or, that pending such
adjudication, the property may be sold but the sale shall not be confirmed, and
any such order may be made subject to such terms and conditions as to
security or otherwise as the Court thinks fit.
Points:-
If before claim application is filed, the attached property has already been
advertised for sale,
 If it is movable, make an order postponing the sale
 If it is immovable property, make an order that the property shall not be

sold or may be sold, but the sale shall not be confirmed
 Obviously this has been made with a view to expedite the sale
proceedings so that in the event of the claim being rejected, the further
proceedings can go on expeditiously.
 Once the claim petition is allowed the sale will be treated as void because
the interest of the judgment-debtor that was sold did not in fact belong to
him and the Court auction-purchaser would not get any title to the
property as the judgment-debtor had no interest therein and because the
claimant continues to retain his interest in those properties
Kancherla Lakshminarayana Vs Mattaparthi Syamala & Others on 14

March, 2008 https://indiankanoon.org/doc/1451619/
ORDER XXX SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON

BUSINESS IN NAMES
Order 30 Rule 2 Disclosure of partners' names— (1) Where a suit is

instituted by partners in the name of their firm, the plaintiffs or their pleader
shall, on demanding writing by or on behalf of any defendant, forthwith declare
in writing the names and places of residence of all the persons constituting the
firm on whose behalf the suit is instituted.
(2) Where the plaintiffs or their pleader fail to comply with any demand made
under sub-rule (1) all proceedings in the suit may, upon an application for that
purpose, be stayed upon such terms as the Court may direct.
(3) Where the names of the partners are declared in the manner referred to in
sub-rule (1) the suit shall proceed in the same manner, and the same
consequences in all respects shall follow, as if they had been named as
plaintiffs in the plaint:
Provided that all proceedings shall nevertheless continue in the name of the
firm, but the name of the partners disclosed in the manner specified in sub-
rule (1) shall be entered in the decree.
Points:-
(1) The Registration of a firm is a condition precedent for the launching of a

suit by the firm as per Section 69(2) of the Partnership Act. Subsequent
registration cannot cure the defect.
(2) The objection regarding non-registration has to be specifically pleaded. Once

pleaded it is incumbent on the plaintiff to prove the same and failure is fatal.
(3) If non-registration is not specifically pleaded, no evidence can be let in for

the plea not raised. The objection regarding non-registration can be waived.
Unless the waiver of the right or the absence of the right makes any particular
matter illegal, or where the benefit is conferred by a statute which has public
policy for its object, and,
(4) Such waiver can be expressed or be inferred from the facts and
circumstances of the case.
If the suit is validly instituted by or on behalf of the firm against any third
party two conditions must be fulfilled viz.
(1) the firm is registered and
(2) the persons suing are or have been shown in the Register of firms as
partners in the firm.
The scope and ambit of the provisions of Rules 1 and 2 of Order 30 of the Civil
P.C. is different from the provisions of Section 69(2) of the Partnership Act.
The provisions contained in Rules 1 and 2 are procedural; whereas the

provisions of Section 69(2) are substantive and create a bar at the threshold of
the filing of a suit by or on behalf of a firm if the conditions mentioned therein
are not fulfilled.
The question of the applicability of the provisions of Rules 1 and 2 of Order 30

of the Civil P.C. arises only if the suit itself is validly instituted in compliance
with the provisions of the Civil P.C.
Sri Balaji Traders, Rep. By Its ... Vs United India Insurance Co. Ltd. 2005
(1) CTC 267, (2005) 2 MLJ 26
If the suit is not filed on the basis of any right arising out of the contract and
the suit is filed for common law, for example, remedy for recovery of possession
after termination of the lease. agreement by efflux of time, suit in respect of
nuisance against third party, etc., Sec.69(2) of Partnership Act or Registration
of Firm is not a bar.
M/s. Sb Steel Industries Vs M/S.India Re-Rolling Mills
https://indiankanoon.org/doc/122365993/
Madras Hon’ble High Court took a view that Order 30 Rule 10 of C.P.C. is
applicable to individual also, who carried on business in an assumed or trading
name. But, some High Courts took contrary view.
Chidambaram Vs National Bank A.I.R. 1936 Madras 707
Any person carrying on business in the name and style other than his own
name may be sued in such name or style as if it were a firm name and so far as
the nature of the case would permit all rules under order 30 of the Code of Civil
Procedure would be applicable. Rashpal Malhotra Vs Mrs. Satya Rajput and
Another 1987 AIR 2235, 1988 SCR (1) 110
ORDER XXXII SUITS BY OR AGAINST MINORS AND PERSONS OF

UNSOUND MIND
Order 32 Rule 10 Stay of proceedings on removal, etc., of next friend— (1)

On the retirement, removal or death of the next friend of a minor, further
proceedings shall be stayed until the appointment of a next friend in his place.
(2) Where the pleader of such minor omits, within a reasonable time, to take
steps to get a new friend appointed, any person interested in the minor or in
the matter in issue may apply to the Court for the appointment of one, and the
Court may appoint such person as it thinks fit.
You are aware that if a minor is a plaintiff, who has to be represented by his
next friend under Order 32 Rule 1 and if defendant, who has to be represented
by his guardian under Order Rule 3. On the retirement, removal or death of the
next friend of a minor, further proceedings shall be stayed until the
appointment of a next friend in his place.
Points:-
1. This rule is attracted only when the fact of death is brought to the notice
of the court.
2. If no next friend is appointed, the suit is pending, and cannot abate until
three years after the minor attains minority.
ORDER XXXV- INTERPLEADER
Order 35 Rule 3 Procedure where defendant is suing plaintiff— Where any

of the defendants in an interpleader-suit is actually suing the plaintiff in
respect the subject-matter of such suit, the Court in which the suit against the
plaintiff is pending shall, on being informed by the Court in which the
interpleader-suit has been instituted, stay the proceedings as against him;
and his costs in the suit so stayed may be provided for in such suit; but if,
and in so far as, they are not provided for in that suit, they may be added to his
costs incurred in the interpleader-suit.
An interpleader suit is one, in which, the real controversy/dispute is not

between the plaintiff and the defendant, but is rather between the defendants
only, who inter-plead against each other.
Example - Where the suit was an inter-pleader suit brought by the

tenants to ascertain whether they had to pay rent to son or daughter or wife of
the landlord. The suit filed by the son of the deceased landlord against the
tenant has to be stayed. The court while decreeing the inter pleader suit also
include the cost of the tenant or he may add his cost in interpleader suit itself.
ORDER XXXVII SUMMARY PROCEDURE
Order 37 Rule 4 Power to set aside decree— After decree for the Court may,
under special circumstances set aside the decree, and if necessary stay or set
aside execution, and may 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.
The power under Rule 4 or Order 37 is not confined to setting aside the ex
parte decree, it extends to staying or setting aside the execution and giving
leave to appear to the summons and to defend the suit. Rajni Kumar Vs
Suresh Kumar Malhotra AIR 2003 Supreme Court 1322
Order 37 Rule 5 Power to order bill, etc., to be deposited with officer of

Court— In any proceeding under this Order the Court may order the bill,
hundi or note on which the suit is founded to be forthwith deposited with an
officer of the Court, and may further order that all proceedings shall be stayed
until the plaintiff gives security for the costs thereof.
Points:-
 The plaintiff shall deposit the bill, hundi or note, on which the suit is
filed
 If failed to deposit or gives security for the costs thereof, all the
proceedings shall be stayed.
ORDER XLI-APPEALS FROM ORIGINAL DECREES
Order 41 Rule 5 Stay by Appellate Court— (1) An appeal shall not operate as
a stay of proceedings under a decree or order appealed from except so far as
the Appellate Court may order, nor shall execution of a decree be stayed by
reason only of an appeal having been preferred from the decree; but the
Appellate Court may for sufficient cause order stay of execution of such
decree.
[Explanation—An order by the Appellate Court for the stay of execution of the
decree shall be effective from the date of the communication of such order to
the Court of first instance but an affidavit sworn by the appellant, based on his
personal knowledge, stating that an order for the stay of execution of the
decree has been made by the Appellate Court shall, pending the receipt from
the Appellate Court of the order for the stay of execution or any order to the
contrary, be acted upon by the Court of first instance.]
(2) Stay by Court which passed the decree—Where an application is made for
stay of execution of an 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 be stayed.
(3) No order for stay of execution shall be made under sub-rule (1) or sub-rule
(2) unless the Court making it is satisfied—
(a) that substantial loss may result to the party applying for stay of execution
unless the order is made;
(b) that the application has been made without unreasonable delay; and
(c) that security has been given by the applicant for the due performance of
such decree or order as may ultimately be binding upon him.
(4) [Subject to the provisions of sub-rule (3)], the Court may make an ex parte
order for stay of execution pending the hearing of the application.
(5) Notwithstanding anything contained in the foregoing sub-rules, where the

appellant fails to make the deposit or furnish the security specified in sub-rule
(3) of rule 1, the Court shall not make an order staying the execution of the
decree.]
Points:-
Rule 5(1) – Stay by appellate court – Mere pendency of appeal does not operate
as stay
Rule 5(2) – Stay by the court which passed the decree
Rule 5(3) – While granting stay, the court has to see whether
 any substantial injury may result, if not granted
 Whether an application is filed in time
 Whether he is ready to furnish security

Rule 5(4) – Rule 5(3) is applicable to Rule 5(2) also
Rule 5(5) – If appellant failed to make deposit or furnish security, the court
shall not grant stay
Order 41 Rule 5(3) is applicable to Rule 5(2) also. It is a discretionary power of

the court which passed the decree that whether stay has to be granted or not,
considering the relative hardship and even security can be ordered for granting
stay. 2005 (1) SCC 705 (Atma Ram Properties (P) Ltd Vs Federal Motors (P)
Ltd.)
Order 41 Rule 6 Security in case of order for execution of decree appealed

from—
(1) Where an order is made for the execution of a decree, from which an appeal
is pending, the Court which passed the decree shall, on sufficient cause being
shown by the appellant, require security to be taken for the restitution of any
property which may be or has been taken in execution of the decree or for the
payment of the value of such property and for the due performance of the
decree or order of the Appellate Court, or the Appellate Court may for like
cause direct the Court which passed the decree to take such security.
(2) Where an order has been made for the sale of immovable property in
execution of a decree, and an appeal is pending from such decree, the sale
shall, on the application of the judgment- debtor to the Court which made the
order, be stayed on such terms as to giving security or otherwise as the Court
thinks fit until the appeal is disposed of.
The judgment-debtors may file an application under Order 41, Rule 6(2)
before the execution Court which has on security being furnished by the said
judgment-debtors stayed the sale of the said property which continues to
remain under attachment.
• Rule 6(1) When an execution proceedings is pending and J.D. also

preferred an appeal as against the decree, the trial court or on the
direction of the appellate court, the trial court may direct the J.D. to
furnish security.
• Rule 6(2) When an execution proceedings is pending for sale of an

immovable property and J.D. also preferred an appeal as against the
decree, the executing court, on the application of the J.D., shall stay the
sale on such terms as to giving security or otherwise as the Court thinks
fit until the appeal is disposed of.
• Rule 7 No security to be required from the Government or a public officer

in certain cases. Under Order 27 Rule 8A and Order 41 Rule 7, if the
government is the J.D., the court cannot ask to furnish security
Under Order 41 Rule 6, the Court which passed the decree can also stay the
execution of the decree passed by the Court, if it is brought to the notice that
an appeal is pending against the decree and Judgment of the trial Court.
Difference between Order 41 Rule 5(1) and 6(2):- The exercise of

appellate Jurisdiction under Order 41 Rule 5(1) is discretionary. The appellate
Court has necessarily to take into account in that connection the relative
hardship involved to the parties and such other factors as may be regarded to
be relevant. No such elements are, however, to be found contained in so far as
the Rule 6(2) is concerned. The execution Court has only to ascertain therein
that the sale required in execution is of immovable property and that there is
an appeal pending against the decree of which execution is sought.
The mere pendency of an appeal is for purposes of Rule 6(2) make

enough ground for stay of sale of immovable property, whereas Rule 5(1)
contemplates in express terms that mere pendency of appeal does not amount
to stay of execution. The execution Court has, of course, to obtain security
under Rule 6(2) in order to be able to exercise powers thereunder. But subject
to all this the grant of stay by the Execution Court thereunder is mandatory.
Embassy Hotels (P) Ltd., Vs Benjamin Proprietor of Nirmala (2008) 2 MLJ

1219
ORDER XLV- APPEALS TO THE SUPREME COURT
Order 45 Rule 11 Effect of failure to comply with order— Where the

appellant fails to comply with such order, the proceedings shall be stayed, and
the appeal shall not proceed without an order in this behalf of the Supreme
Court and in the meantime execution of the decree appealed from shall not be
stayed.
Under Order 45 Rule 10, while admitting an appeal, but before the
transmission of the copy of the record, if the security furnished under Order 45
Rule 7 for Certificate, is adequate, and further payment is required for the
purpose of translating, transcribing, printing, indexing or transmitting the copy
of the record, the Supreme Court may order the appellant to furnish, within a
time to be fixed by the Court, other and sufficient security, or to make, within
like time, required payment.
Order 45 Rule 13 Powers of Court pending appeal— (1) Notwithstanding the

grant of a certificate for the admission of any appeal, the decree appealed from
shall be unconditionally executed, unless the Court otherwise directs.
(2) The Court may, if it thinks fit, on special cause shown by any party
interested in the suit, or otherwise appearing to the court,—
(a) impound any movable property in dispute or any part thereof, or
(b) allow the decree appealed from to be executed, taking such security from
the respondent as the Court thinks fit for the due performance of any order
which the Supreme Court may make on the appeal, or
(c) stay the execution of the decree appealed from, taking such security from
the appellant as the Court thinks fit for the due performance of the decree
appealed from, or of any decree or order which the Supreme Court may make
on the appeal, or
(d) place any party seeking the assistance of the Court under such conditions
or give such other direction respecting the subject-matter of the appeal, as it
thinks fit, by the appointment of a receiver or otherwise.
Order 45 Rule 14 Increase of security found inadequate— (1) Where at any

time during the pendency of the appeal the security furnished by either party
appears inadequate, the Court may, on the application of the other party,
require further security.
(2) In default of such further security being furnished as required by the Court,
—
(a) if the original security was furnished by the appellant, the Court may, on
the application of the respondent, execute the decree, appealed from as if the
appellant had furnished no such security;
(b) if the original security was furnished by the respondent, the Court shall, so
far as may be practicable stay the further execution of the decree, and restore
the parties to the position in which they respectively were when the security
which appears inadequate was furnished, or give such direction respectiong the
subject-matter of the appeal as it thinks fit.
ORDER XLVI - REFERENCE
Order 46 Rule 2 Court may pass decree contingent upon decision of High
Court— The Court may either stay the proceedings or proceed in the case
notwithstanding such reference, and may pass a decree or make an order
contingent upon the decision of the High Court on the point referred.
Rule 1 – If the court has any reasonable doubt or any question of law,
while trying the suit or appeal, or executing the decree, either of its own motion
or on the application of any of the parties, draw up a statement of the facts of
the case and the point on which doubt is entertained, and refer such statement
with its own opinion on the point for the decision of the High Court.
Rule 2 - The Court may either stay the proceedings or proceed in the
case notwithstanding such reference, and may pass a decree or make an order
contingent upon the decision of the High Court on the point referred.
But no decree or order shall be executed in any case in which such

reference is made until the receipt of a copy of the judgment of the High Court
upon the reference.
If reference is in respect of the particular case, it has to be submitted to

the Hon’ble High Court through judicial side and not administrative side. If it is
submitted generally, then it has to be submitted on Administrative side.
Sec.94(e) and Sec.151 - If no relevant provision is available, this provisions

may be used to file stay application.
Example:-
1. If the previous suit is for bare injunction and the subsequent suit is for
comprehensive relief, then application of Sec.10 is not applicable. Thus,
Comprehensive suit has to be stayed, which was filed subsequently only
under this provisions.
2. Order passed by the execution court on merits.
Check the following before allowing or dismissing Sec.5, Set aside

application or Stay application, etc., :-
1. The delay between the date of exparte order and date of exparte decree
2. The delay between the exparte decree and date of an application to set
aside the exparte decree
3. The reason for delay in filing an application to set aside the exparte
decree, namely under Sec.5 of Limitation Act
4. The delay between the date of receipt of notice in E.P. and date of filing
an application to set aside the exparte decree
5. The delay between the date of appearance in E.P. and the date of filing an
application to set aside the exparte decree
6. All so keep it in mind that whether exparte decree was passed, where
summon was not duly served, but served by affixing, by refusing, by
retuning as left, unknown, insufficient address, door locked, no
addressee, no such address, intimation or by paper publication, etc., or
7. Whether exparte decree was passed, where summon was duly served or
engaged a counsel, who contested for sometime, written statement is
filed, etc.,
For your reference, in Order 8 Rule 6D, Order 39 Rule 1 and Order 41 Rule 3A
of C.P.C. also the word STAY has been used, but not the purpose of filing an
application.
by
A.S.Ravi,
Addl. District Judge,
Coimbatore
A.S.Raja,
Senior Civil Judge,
Vellore,
Tamil Nadu

Injunction in CPC

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For Beyond Law C.L.C. Different Types of Stay Applications under C.P.C.

Different Types of Stay Applications under C.P.C.

Ad interim Injunction - Till the disposal of Interlocutory Application (I.A.)

Temporary Injunction - Till the disposal of the suit

Perpetual or in colloquial permanent Injunction - Life time

Difference between Injunction and Stay:-

The Hon’ble supreme Court of India in Mulraj Vs Murti Raghonathji

“An order of injunction is generally issued to a party and it is forbidden

Factors to be considered, while granting Stay:-

1. The balance of convenience does not favour the alleged violator;

2. Order 6 Rule 14A(5)

10. Order 37 Rule 4

11. Order 37 Rule 5

12. Order 41 Rule 5(1)

13. Order 41 Rule 5(2)

14. Order 41 Rule 6(2)

15. Order 45 Rule 11

16. Order 45 Rule 13

17. Order 45 Rule 14(2)

18. Order 46 Rule 2

19. Sec.94(e) and Sec.151, if no relevant provision

3. It cannot apply to proceedings of other nature instituted under any other

4. Issues in both suits must be directly or substantially same

6. In such case, the subsequent suit shall be stayed.

Object underlaying Sec.10:-

• To avoid two parallel trials on the same issue by two courts

• To avoid recording of conflicting findings on issues, which are directly

• To prevent courts of concurrent jurisdiction from simultaneously trying

Object underlaying Sec.10:-

 To avoid two parallel trials on the same issue by two courts

 To avoid recording of conflicting findings on issues, which are directly

 To prevent courts of concurrent jurisdiction from simultaneously trying

Fundamental Test to attract Sec.10:-

 Whether on final decision being reached in the previous suit, such

 Whether the whole of the subject-matter in both the suits is identical.

How to under stand Sec.10:-

3. If previous suit is comprehensive suit and new/subsequent suit is bare

4. If previous suit is bare injunction suit and new/subsequent suit is

Order VI Rule 14A (5) Address for service of notice—

Where the registered address of a party is discovered by the court to be

 If filed by plaintiff – stay the suit

 If filed by the defendant – stuck off the defence

Gagan Kakkar Vs Dharampal Chhabra on 22 July, 2015 (Delhi High Court)

Order XXI Rule 26 When Court may stay execution—

(3) Power to require security from, or impose conditions upon, judgment-debtor

Sec.38 Court by which decree may be executed:-

1. By the Court, which passed the decree/Trial Court or

2. By the Court, to which it is sent for execution under Order 21 Rule 5

1. If certified copies are not furnished to the J.D. or

2. Appeal time is not completed

Which Court can grant stay under Order 21 Rule 26:-

Which Court cannot grant stay under Order 21 Rule 26:-

2. Under Order 41 Rule 5(1) before the Appellate Court

Stages, where stay application to be filed:-

1. Stay the operation of the decree - On the date of pronouncement of

4. No stay application is maintainable – before trial court cum executing

S.No. When to be Where to be Provision of Reason for filing

2. On the date of Appellate Court Order 41 Rule Decree Holder is

3. After execution Trial Court, Order 41 Rule Decree Holder is

4. After execution Trial Court, Order 41 Rule Decree Holder is

5. If the decree Execution Court Order 21 Rule 26 Certified Copies

6. If the decree Execution Court Order 21 Rule 26 Certified Copies

7. After an order Execution Court No such Stay for operation

K.Lakshmiammal Vs D.S.Nagalakshmi 2012 (3) MWN (Civil) 66