1. Id no:- adv.anshuman@gmail.com
Grant of Stay of Decree under appeal and Power of remand exercising Civil Appellate Jurisdiction (Case Law Discussion)
Dr. ANSHUMAN
Advocate
Patna High Court , Patna ;
Id no:-

2. Definition of Stay Stay  It means to stop from motion
The act of temporarily stopping a judicial proceeding through the order of a court
A stay is a suspension of a case or a suspension of a particular proceeding within a case. A judge may grant a stay on the motion of a party to the case or issue a stay sua sponte, without the request of a party. Courts will grant a stay in a case when it is necessary to secure the rights of a party.
Two Types of Stay
Stay of execution
Stay of Proceedings

3. Definition of Remand Remand  To send or order back.
the act of going back to a prior location
Law.
To send back to custody.
To send back (a case) to a lower court with instructions about further proceedings.
A higher court may remand a case to a lower court so that the lower court will take a certain action ordered by the higher court.

4. Order 41 R 5(1) of CPC 5 Stay by Appellate Court. .-
5(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, staling 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.]

5. Stay by the court which passed decree O41R5(2) CPC
(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 ori sufficient cause being shown order the execution to be stayed.

6. Stay Can’t be granted by the unless court satisfied under O41 R5(1) or O41R5(2) – O41R(3)
(a) that substantial loss may result to the party applying for stay or 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.

7. Court can grant Stay ex-parte – O41R5(4)
the Court may make in ex parte order for stay of execution pending the hearing of the application.

8. When party fails to make deposit or furnish security – No Stay
O41R5(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.]

9. Substantial loss
For consideration of substantial loss following thing is to be considered
Nature f property
Character of possession
Past enjoyment
1921)61 Ind. Cases 9 (13) (DB)
Disturbance of possession is itself a substantial loss – 2004)3 BLJ 253
Mere decree of cost cannot be stayed – AIR 1926 PAT 54 DB

10. Sufficient Cause

11. Latest Judgments – Stay in money decree
AIR 2009 SC 1581  M/S Malwa Strips Pvt.Ltd. Vs M/S Jyoti Ltd.
Appellant Company filed a summary suit U/S 37of CPC for payment of Rs49,03, to wards the supply of copper rod strips to the respondent company.
Respondent filed an application to leave to defend the suit. The appellant contended that as the respondent raised the defence only as regards to the rate of interest and not the principal amount, Its application should be dismissed.
The leave application to defend the suit was allowed by the trial court subject to the condition that the respondent shall make payment of undisputed and admitted amount Rs22,64,789.52, such deposit is to be made by
Respondent obtained extension of time to deposit the amount But said amount was not deposited the trial court passed a judgment on
Respondent preferred appeal with application to grant stay of the said judgment & decree
Stay was granted by the appellate court

12. Continue In a money decree applicable provisions - Sec. 87(3) + O41R1
Appeal against money decree – Stay of execution –Appeal filed without making deposit or furnishing security- -Stay to execution of decree can not be granted making out exceptional circumstances

13. Other judgments on stay of money decree
AIR 1999 Rajsthan 264 Rajsthan State Electricity Board Vs Ramdeo & Ors
(1998)8 SCC 676 Samsudin Khan Vs State Bank of India – Non payment of decretal amount or part of it or to furnish security would result into dismissal of stay application but not the entire appeal.
(2005) 4 SCC 1 Sihor Nagar Palik Bureau Vs Bhabhlubhai Virabhai & Co.
2008 AIR SCW :: (2008) 3 SCC 397 B.P. Agarwal & anr. Vs Dhanalakshmi Bank Ltd.

14. Rulings on Stay (2003) 1 PLJR 6 (7) 2003) 1 PLJR 658 DB
1997) 2 PLJR 471 Ordinarily in cases relating to immovable property stay of delivery of possession should be granted, however no such plea was ever taken in lower court stay can not be granted

15. Stay of realization of Municipal tax
1992) 1 BLJR 374 Pat
There is no inconsistency between Sec. 152(6) of PMC Act, 1951 & O.41R5(1) of CPC

16. Stay in transferring of land
AIR 2005 Pat 91 Lands exceeding their share were transferferred by plaintiff court had assumed that defendants would suffer substantial loss w.r.t. entire properties including agricultural land -- further without considering relevant material. Court had opined that no security is required to be given for due performance of decree – Impugned order is therefore modified to extent stayed only with regard to with regard to house & home stead lands – however execution with regard to house and agricultural land will not in any manner cause substantial loss to the opposite parties : 2005) 2 PLJR 8

17. Stay relating to dispute between the tenant & landlord
1998) 2 PLJR 127
Where in an appeal decree in title suit filed by defendant which kept a tenant in the disputed house, it was the defendant who was to protect interest of tenant against the dispossession and thus application filed by the defendant for stay of execution was liable to be allowed. Its rejection on the ground person in possession i.e. tenant ought to have filed application not proper.

18. Remand O41R23, R23A & R25
Remand if decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, with what issue or issues shall be tried in the case so remanded,  R23
Remand if decree an appeal is preferred has disposed of the suit upon non preliminary point and the decree is reversed in appeal, and a re-trial is considered necessary  R23A
Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issue, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required;  R25

19. Distinction of Remand U/O41R23 & R25
Remand U/O41R23 returns the whole case back to the trial court where as in U/O41R25, the case is retained on the file of the appellate court and issue only are remitted to the lower court
An order U/O 41R23 is appellable U/O43R1(u), But order passed U/O41R25 is not appellable but it can be revisable only
Order of remand U/O 41R23 is final order and it can not be reconsidered except review, where as order of remand U/O 41R25 is mere interlocutory order which it is open to the court to reconsider.

20. Remand O41R23, R23A & R25
Remand of cases by appellate court U/O 41R23 can not be made when the suit has been decided on the merit by the trial court – AIR 1974 Pat 43(47)
23 Remand of case by Appellate Court. .-Where the Court from whose decree an appeal is preferred has disposed of the suit
upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and
may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred,
with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and
the evidence (if any) recorded during the original trial shall, subject to all just exceptions,
be evidence during the trial after remand.

21. 2003) 4 PLJR 810
It is cardinal principal of remand that when ever it is found that some thing which is vital has not be decided by the trial court and the same can not be decided by the appellate court because of lack of proper material on the records then only remand can be made

22. 23 Remand of case by Appellate Court
23 Remand of case by Appellate Court. .-Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
23A Remand in other cases[. .-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.]
25 Where Appellate Court may frame issues and after them for trial to Court whose decree appealed from. .-Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issue, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issue, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor 11. Ins. by Act 104 of 1976, Sec. 87 (w.e.f. 1st February. 1977). [within such time as may be fixed by the Appellate Court or extended by it from time to time.]

23. Preliminary Point & Issue
Preliminary Point & Preliminary Issue are different
Preliminary points
The suit is barred by res-judicata
The suit is barred by limitation
The suit is barred by any other rule
The documents on which the suit is based is inadmissible in evidence
Plaintiff is estopped from proving his case
Plaintiff has no cause of action
Suit is bad for defect in description of the defendant
The case raised at the hearing is different from raised in the plaint
The suit has abated

24. Preliminary Issue as described in O14CPC
Issue relating to Jurisdiction
Issue relating to Subject matter