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Saturday, 14 November 2026 Judgments, law jobs and study notes, written by a practising advocate
Code of Civil Procedure, 1908 · Order XLI: Appeals From Original Decrees

Order XLI Rule 5 CPC: Stay by Appellate Court

Bare Act text

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 provision 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.]

Amendment notes

  1. Ins. by Act 104 of 1976, s. 87. (w.e.f. 1-2-1977).
  2. Subs. by s. 87, ibid., for certain words (w.e.f. 1-2-1977).

Text of the Code of Civil Procedure, 1908 (Act No. 5 of 1908), First Schedule, as amended, including the changes for commercial disputes made by the Commercial Courts Act, 2015. Source: India Code, Government of India.

In simple words

An appeal does not by itself stay proceedings under the decree or order appealed from, nor stay execution, except as the Appellate Court orders for sufficient cause. A stay order takes effect from communication to the Court of first instance, though the appellant's affidavit may be acted on meanwhile. The Court that passed the decree may also stay execution if applied to before the appeal period expires. A stay requires that substantial loss may result, that the application was made without unreasonable delay, and that security has been given. An ex parte interim stay is possible, and no stay may be made if the appellant fails the deposit or security under rule 1(3).

Order XLI: Appeals From Original Decrees

  1. 1 Form of appeal
  2. 2 Grounds which may be taken in appeal
  3. 3 Rejection or amendment of memorandum
  4. 3A Application for condonation of delay
  5. 4 One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all
  6. 5 Stay by Appellate Court
  7. 6 Security in case of order for execution of decree appealed from
  8. 7 No security to be required from the Government or a public officer in certain cases (Repealed)
  9. 8 Exercise of powers in appeal from order made in execution of decree
  10. 9 Registry of memorandum of appeal
  11. 10 Appellate Court may require appellant to furnish security for costs
  12. 11 Power to dismiss appeal without sending notice to Lower Court
  13. 11A Time within which hearing under rule 11 should be concluded
  14. 12 Day for hearing appeal
  15. 13 Appellate Court to give notice to Court whose decree appealed from (Omitted)
  16. 14 Publication and service of notice of day for hearing appeal
  17. 15 Contents of notice (Omitted)
  18. 16 Right to begin
  19. 17 Dismissal of appeal for appellant's default
  20. 18 Dismissal of appeal where notice not served in consequence of appellant’s failure to deposit cost (Omitted)
  21. 19 Re-admission of appeal dismissed for default
  22. 20 Power to adjourn hearing and direct persons appearing interested to be made respondents
  23. 21 Re-hearing on application of respondent against whom ex parte decree made
  24. 22 Upon hearing respondent may object to decree as if he had preferred a separate appeal
  25. 23 Remand of case by Appellate Court
  26. 23A Remand in other cases
  27. 24 Where evidence on record sufficient, Appellate Court may determine case finally
  28. 25 Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from
  29. 26 Findings and evidence to be put on record
  30. 26A Order of remand to mention date of next hearing
  31. 27 Production of additional evidence in Appellate Court
  32. 28 Mode of taking additional evidence
  33. 29 Points to be defined and recorded
  34. 30 Judgment when and where pronounced
  35. 31 Contents, date and signature of judgment
  36. 32 What judgment may direct
  37. 33 Power of Court of appeal
  38. 34 Dissent to be recorded
  39. 35 Date and contents of decree
  40. 36 Copies of judgment and decree to be furnished to parties
  41. 37 Certified copy of decree to be sent to Court whose decree appealed from
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