5. Stay by Appellate Court.- (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 to first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating 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 country, be acted upon by the court of first instance. (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 there from, the court which passed the decree may on sufficient cause being shown order the execution to be stayed. (3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the court making it is satisfied— (a) that substantial loss may result to the party applying for stay of 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 of or as may ultimately be binding upon him. (4) Subject to the provisions of sub-rule (3), the court may make an ex parte order for stay of execution pending the hearing of the application. (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. HIGH COURT AMENDMENTS Allahabad.- Sub-rule (5) of Rule 5 of Order 41, CP Code shall be substituted by the following: “(5) Notwithstanding anything contained in the foregoing sub-rules where the appeal is against a decree for payment of money, the Appellate Court shall not make an order staying the execution of the decree, unless the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Appellate Court may think fit.” Noti. No. 552/Vll-d-134 dated 3.10.1993 published in U.?. Gaz. Part 2 dated 1.1.1994, pp 1-2. Andhra Pradesh.- (i) Delete the full stop at the end of sub-rule (1), and add the following to the sub-rule: “And may, when the appeal is against a preliminary decree, stay the making of a final decree in pursuance of the preliminary decree or the execution of any such final decree if already made.” (ii) In sub-rule (1), after the words “but the Appellate Court may for sufficient cause order stay of execution of such decree” insert. “On such terms and conditions as the Court deems fit.” Calcutta: Andaman and Nicobar Islands.- At the end of sub-rule (1) of Rule 5, for the words “but the Appellate Court may for sufficient cause order stay of execution such decree” substitute the following:
“But the Appellate Court may, subject to sub-rule (3) of Rule 6 of this Order, for sufficient cause order stay of execution of such decree.” (5.10.1948). Kerala: Laccadive, Minicoy and Amindivi Islands.- (i) Same as that of Andhra Pradesh. (ii) In sub-rule (3), add the following proviso to clause (c): “Provided that in the case of decree charging immovable properties the Appellate Court may, in its discretion, dispense with such security in whole or in part. “(9.6.1959). Madras and Pondicherry.- Same as that of Andhra Pradesh (17.9.1980). Karnataka.- Add the following at the end of sub-rule (1) of Rules in continuation:
“And may, when the appeal in against a preliminary decree, stay the making o a final decree in pursuance of the said preliminary decree or the execution of any such final decree if already made or when made or stay all or any of the further proceedings to be taken pursuant to such preliminary decree.
Nothing herein contained shall affect or limit the inherent power of the Court to stay other proceedings either before it or any Court subordinate to it in appropriate cases.” (5.11.1959).
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