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Q. Does an appeal amount to stay?

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M I

posted 1 month ago

question iconDoes an appeal amount to stay?

Will the judge consider an appeal before higher court by the opposite party as a stay and refuse further hearing in his court?Any case law to prove appeal does not amount to stay...

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Anik

Anik

Responded 1 month ago

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A.Dear Client,
Once an appeal is filed, the petition must contain a request for an interim order staying all proceedings in the trial court, and this is the way it must be done, or the appeal will be rendered moot. And, during the appeal hearing, the first-instance advocate must orally beg for a stay, or the appellate court may fail to issue a stay order. If the appeal court does not issue a stay, the lower court will proceed with its proceedings.
Thank you!

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Advocate Sinjari  Bandyopadhyaya

Advocate Sinjari Bandyopadhyaya

Responded 1 month ago

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A.Until and unless there is Stay Order from the Appellate Court , the trial/ Subordinate Court is not bound to stay its proceedings merely due to pendency of Appeal before the Higher Court.

As per Order 41, Rule 5 of the Code of Civil Procedure,1908, as amended up to date, 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.

Where Statute has made clear provision in this regard, case law cannot be to the contrary.

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Abhimanyu  Shandilya

Abhimanyu Shandilya

Responded 1 month ago

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A.Technically whenever there is an appeal the petition shall include a prayer for interim order for stay of all the proceedings at the trial court and that's the way it has to be otherwise the appeal can lose its relevance. And during the appeal hearing the Advocate at the first instance has to orally pray for the stay otherwise the appellate court might miss to pass an order for stay.

If the appellate court does not pass an order for stay then the lower court will continue with its hearing.

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