Affidavit for Stay of Execution Pending Appeal

Affidavit for Application seeking stay of Execution of Judgement under Order XLI Rule 5 of Code of Civil Procedure.

MR. ____________

…………..applicant / appellant

VERSUS

MR._____________

……………respondent

AFFIDAVIT

I, __________________, son of Shri _______________, aged about ___ years, residing at ___________________________________, New Delhi - _____, do hereby solemnly affirm and declare as follows:

1. That I am the appellant in the above-mentioned Appeal and also the applicant/petitioner in the application referred to herein. I am fully acquainted with the facts and circumstances of the present matter, and I am duly competent to affirm this affidavit. For ease of reference, I will hereinafter be referred to as the applicant.
2. That the respondent had instituted Suit No. _________________ of 20______ against me before the Subordinate Court at ________________ seeking recovery of a sum of Rs. __________________, purportedly claimed to be due from me on account of computers supplied by the respondent.
3. That the Hon'ble Subordinate Court decreed the said suit in favour of the respondent on ______________________.
4. That the respondent, as decree-holder, thereafter filed an execution petition before the same Subordinate Court seeking enforcement of the decree.
5. That I respectfully submit that I am engaged in running a small photo studio situated in the front portion of my residence, bearing No. _____________________. I am a person of modest financial means, solely responsible for supporting my wife, three minor children, and my elderly parents.
6. That if execution of the aforesaid decree is permitted to proceed while the present appeal remains pending, I will suffer severe hardship and difficulty, as it will become extremely challenging for me to maintain and provide for my dependants.
7. That in view of the facts and circumstances detailed above, it is just, fair, and necessary that this Hon'ble Court be pleased to stay all proceedings in execution of the decree dated ______________________ passed by the Learnt Subordinate Judge in O.S. No. __________________ of _______________ pending final disposal of this appeal.

DEPONENT

VERIFICATION

I, the deponent named above, hereby verify that the statements made in this affidavit are true and correct to my personal knowledge, and nothing material has been concealed or misstated.
Verified at New Delhi on this ___ day of _______, 20.

DEPONENT

Purpose

It is filed when a person (appellant) has lost a case in the trial court and filed a first appeal in the High Court, but the winning party (respondent) is already trying to execute the decree (collect money, attach property, etc.). The affidavit supports an application to stay execution of the decree until the appeal is decided.

When it is used

• After the trial court passes a decree against you (e.g., payment of money, possession of property).
• You file a First Appeal under Section 96 CPC.
• The decree-holder starts execution proceedings.
• You request the appellate court to pause execution to prevent hardship and injustice until the appeal outcome.

Key points

1. Filed with Miscellaneous Application under Order XLI Rule 5 CPC.

2. Grounds: financial hardship, irreparable loss, balance of convenience.

3. Without a stay, an appeal may become meaningless if a decree is enforced.

4. Court has discretion; stay is not automatic.

5. Often a court may order a security deposit/bank guarantee before granting a stay.

FAQs

Q1. Is filing an appeal enough to stop execution of decree?

No. Mere filing of an appeal does not operate as a stay. You must file a stay application with an affidavit. [Order XLI Rule 5 CPC].

Q2. Can the decree-holder still execute the decree if an appeal is pending?

Yes, unless a stay is specifically granted by the appellate court.

Q3. What happens if a stay is granted?

Execution proceedings are halted till the appeal is decided, subject to conditions imposed by the court.

Q4. What conditions can the court impose while granting a stay?

The court may ask the appellant to deposit the decretal amount, furnish security, or comply with other terms to safeguard the decree-holder's rights.

Q5. If a stay is rejected, what can the appellant do?

The appellant may approach the Supreme Court under Article 136 or file a fresh application with stronger grounds.

Q6. Is financial hardship a valid ground for a stay?

Yes, courts consider balance of convenience, financial capacity, and irreparable loss, along with prima facie merits of the appeal.

Q7. Can a stay be partial?

Yes. The court may stay part of the decree (e.g., only execution against property, but not recovery from a bank account).

Q8. Where is such an affidavit filed?

In the High Court (or District Court if the appeal lies there), along with the stay application in the pending appeal.