You are representing a judgment-debtor who has filed an appeal against a decree passed by a lower court. The decree-holder has now initiated execution proceedings. Your client is worried that the property will be sold before the appeal is heard. What is the legal remedy available, and what steps must you take?

You are representing a judgment-debtor who has filed an appeal against a decree passed by a lower court. The decree-holder has now initiated execution proceedings. Your client is worried that the property will be sold before the appeal is heard. What is the legal remedy available, and what steps must you take?

Answer: Filing an appeal does not automatically stay execution of the decree. According to Order XXXIX Rule 5(1) of the Civil Procedure Code [Cap. 33 R.E. 2023], an appeal by itself does not operate as a stay of proceedings under a decree or order appealed from, unless the appellate court expressly orders such stay. To protect your client’s interest and preserve the subject matter pending appeal, you must formally apply for a stay of execution.

As the advocate, you will move the appellate court (normally the High Court if appealing from the District Court) by filing a Chamber Summons under Order XXXIX Rule 5(1), supported by an Affidavit demonstrating:

·         That an appeal has been properly filed and is pending;

·         That the applicant will suffer substantial loss if stay is not granted;

·         That the application has been made without unreasonable delay;

·         That security is ready to be furnished, as the court may direct.

The applicant must also satisfy the court that the appeal has arguable grounds and that the execution may render the appeal nugatory if not stayed.

In addition to the Chamber Summons and Affidavit, include:

·         A certified copy of the decree and judgment;

·         A copy of the memorandum of appeal;

·         Any document showing urgency or risk of irreparable loss, e.g. impending auction notice.

If the application is granted, the court may impose conditions, such as deposit of security or part satisfaction of the decree, to balance the interests of both parties. The stay remains in force until the appeal is disposed of, unless otherwise varied or vacated by the court.

Thus, to prevent imminent execution during appeal, you must promptly apply for stay of execution, ensuring all procedural and evidentiary requirements under Order XXXIX Rule 5 are met.

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