Pendency of Appeal Does Not Automatically Stay Execution of a Decree
The courts have unequivocally declared that mere pendency of an appeal does not operate as a stay on the execution of a trial court’s decree. Unless specifically ordered by the appellate court, a decree’s enforceability continues intact, allowing decree-holders their statutory right of execution despite ongoing appeals. This article explores this pivotal principle, drawing on landmark Supreme Court decisions, quoting judicial excerpts, and analyzing the rationale behind the law.
Statutory Framework: Order 41 Rule 5 CPC
Order 41 Rule 5(1) of the Code of Civil Procedure, 1908, provides the foundation for this doctrine:
“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.”
The rule articulates a clear distinction: a stay is not automatic upon filing an appeal. It must be separately applied for, supported by considerations recognized by law, and be judicially granted by the appellate court.
Judicial Exposition: Supreme Court and High Courts
Key decisions and excerpts follow. (Case names, citations and short judicial excerpt are shown for quick reference.)
| Case | Citation / Date | Judicial Excerpt |
|---|---|---|
| Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. | (2005) 1 SCC 705 | “The mere filing of an appeal does not operate as a stay of the judgment, decree or order appealed against. An appellate court is empowered, for sufficient cause shown, to pass any interim order, including staying the execution of the decree…” |
| Bimal Kumar v. Shakuntala Debi | (2012) 3 SCC 548 | “In the absence of a stay order, the decree-holder has every right to proceed with the execution of the decree.” |
| Raghavendra Swamy Mutt v. Uttaradi Mutt | (2016) 11 SCC 223 | “…only a stay order from the appellate court can suspend execution; mere pendency is insufficient.” |
| Pilla Venkateswara Rao Alias Allabakshu v. Kancherla Malyadri | Civil Revision Petition No: 2460/2025 — Andhra Pradesh High Court (27 Sep 2025) | “Mere pendency of the appeal does not operate as stay on execution of the Trial Court’s decree. The Execution Court has the power and jurisdiction to execute the decree.” |
| Sanjiv Kumar Singh v. The State of Bihar & Ors. | Judgment dated 24 Jan 2023 — 2023 LiveLaw (SC) 63 | “Under Order 41 Rule 5 CPC, a pending appeal does not automatically stay the execution of a previously granted decree unless there’s a specific interim order to that effect. The petitioner’s decree dated August 25, 2021, remained valid until a specific stay was granted.” |
Rationale Behind the Rule
The rationale is rooted in two objectives: preventing unnecessary obstruction to enforcement, and promoting finality of adjudication. If execution were automatically suspended by every appeal, the decree-holder would be left at the mercy of endless litigation. Indian courts, therefore, insist upon timely applications for stay, with safeguards such as security and assurance against loss.
The Function of the Execution Court
The courts executing decrees are not vested with powers to revisit the merits. Their function is ministerial and mechanical—focused solely on execution unless told otherwise by superior judicial orders. As stated by the Andhra Pradesh High Court:
“The Execution Court has the power and jurisdiction to execute the decree… Non-mention of any legal provision in the notice does not vitiate [the] notice nor takes away the jurisdiction.”
Recent Case Law Developments
The Court’s recent orders clarify the confusion among administrative authorities holding that administrative authorities cannot automatically refuse to act on a decree merely because an appeal has been filed. The process necessitates a specific stay order from the relevant appellate court to prevent enforcement.
Practical Consequences
| Topic | Practical Effect |
|---|---|
| Right to Execution | A decree-holder can pursue execution, unfettered by pendency of appeal, unless a stay is in force. |
| No “Automatic” Bar | Mere pendency does not create a bar; it is the specific order of stay that matters. |
| Burden of Proof | The appellant bears the burden to show grounds for stay—substantial loss, prompt application, and security. |
| Administrative Obedience | Authorities must implement decrees in the absence of stay, not await orders due to mere appeal. |
Conclusion
The Indian legal framework robustly empowers decree-holders to execute trial court judgments despite pending appeals, balancing the interests of finality and protection against irreparable loss by requiring rigorous evaluation for stays. The studied clarity of law, echoed in repeated Supreme Court and High Court pronouncements, ensures justice is done and decrees are not reduced to paper victories by strategic appeals. As the Andhra Pradesh High Court and Supreme Court pointedly stated, neither administrative officials nor execution courts may defer enforcement simply on the ground of appeal; only a judicial stay can restrain execution.
Written By: Inder Chand Jain
M: 8279945021, Email: [email protected]
