O.21 R.26: Application for stay of
Execution of decree
The accrual of cause of action: In cases where the decree is sent to anther
court for its execution, the Judgment debtor (against whom the decree is
passed), may make an Application under this Rule before the said executing
Court, to stay the execution of the decree, so as to enable the Judgment debtor
to make appropriate Application before the Court of first instance or before
the Appellate Court, to obtain stay of the execution, or any other Order, which
the Court of first instance or before the Appellate Court are competent to
grant; and the said Court, before granting any stay, shall require the Judgment
debtor to give security or impose such conditions as the Court thinks
reasonable.
The
Application may be taken in the form of a Notice of Motion / Notice / Exhibit /
Chamber Summons, as may be prescribed under the applicable provision of law,
and duly verified by the Applicant.
A
broad approach to drafting of any Application may be undertaken in three chronological “Heads” –
(1) Reliefs prayed for / claimed: It is of central importance that any Relief prayed /
claimed for, must be duly articulated, keeping in mind (a) the nature of jurisdiction
being exercised by the court having regard to the nature of Application which
is sought to be filed / moved; (b) the rights / interest claimed by the
Applicant; (c) the obligations and liabilities of the opposite party.
(2) Grounds for Reliefs prayed for /
claimed; (both factual and legal):
Grounds for Reliefs prayed for / claimed, implies (a) the essence / conclusion
of material facts or proposition of facts which supports the reliefs prayed for
/ claimed; and (b) the provision of law / judgments of the Apex Court or High
Courts, which supports the reliefs prayed for / claimed.
(3) Material facts of the case: Narration of material facts thereby substantiating
the grounds on which the reliefs are claimed.
O.21 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 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.
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