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Report No. 27

Order XLI, rule 5

An amendment has been proposed so as to empower the appellate court to stay:-

(i) proceedings for final decree;

(ii) actual making of the final decree.

It is considered unnecessary to provide for stay of execution of the final decree, as such stay could be obtained in an appeal against the final decree.

The amendment has suggested itself by the Madras Amendment, which has been incorporated with certain modifications.

Order XLI, rule 5 and date of effect of stay order

1. There is a conflict of decisions on the question whether a stay order operates immediately or only when it is communicated to the court or to the officer conducting the sale, as the case may be. According to one view an order takes effect immediately1-2. A contrary view is that an order is in the nature of prohibitory order and becomes effective only on communication3-4.

2. The Calcutta decisions are not uniform5. Mulla prefers the view6 that the order should take effect only when it is communicated to the executing court.

3. It is, however, considered that ordinarily the order should be effective immediately, and a provision to the contrary may be abused by interested parties attempting deliberately to delay transmission of the order from the appellate court to the lower court. It is considered unnecessary to make any amendment in the rule on this point.

1. Karam Ali v. Raja, AIR 1949 Lah 108 (113) (FB).

2. Liakat Mian v. Padampad Singhania, AIR 1951 Pat 130 (SB).

3. Venkatachelapati Rho v. Kameswaramma, AIR 1918 Mad 391 (FB).

4. Parsotam Saran v. Brahmanand, ILR 50 All 41: AIR 1927 All 401 (FB).

5. See Satish Chandra v. Kshirode Kumar, AIR 1943 Cal 319 (324).

6. Mulla Civil Procedure Code, 1953, p. 1190.

Code of Civil Procedure, 1908 Back

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