What is Stay Order?

A stay order in a civil suit means a judicial direction that the proceedings or execution of a judgment or order of a Court be temporarily stayed. It simply stops the legal process or prevents the execution of any Court decision pending further hearings. A stay order is granted in most cases when a higher Court is to consider the decision of a lower Court.

The higher Court gets this time to review the order of the lower Court. A stay order can be understood as the postponement of criminal Court proceedings or the execution of a judgment or Court order. This kind of stay order may happen at any stage of a criminal case, be it at the investigation, trial, or even the post-conviction stage. Typically, a stay order will be used to preserve the status quo and avoid any damage or injustice that cannot be reversed if the process or judgment is executed immediately.

How do stay orders work?

A stay order operates in the following ways:

1. Suspension of Proceedings:
   • A stay order effectively suspends the judicial proceedings of the case in question. This means that no hearings, trials, or judicial activities will take place on the ongoing cae until further notice.
2. Enforcement Stay:
   • When a stay order is granted against the enforcement of a judgment or order, it halts the execution of that judgment or order. In essence, the enforcement is put on hold until the court decides otherwise.
3. Duration:
   • The duration of a stay order is determined by the court and may vary depending on the case. The order remains in effect either until a specific event occurs, a certain period expires, or the court orders the stay to be vacated.
4. Compliance Requirement:
   • All parties involved in the case are legally obligated to comply with the stay order. Failure to adhere to the order can result in legal sanctions for contempt of court.
5. Review and Extension:
   • The court may review the stay order and decide to extend, modify, or lift it based on new developments or the arguments presented by the parties. The purpose of issuing a stay order is to maintain the status quo and prevent any actions that could cause irreparable harm or injustice until the matter is fully resolved.

Grounds for Issuance of a Stay Order

The primary grounds on which the stay orders may be issued are :

Prima Facie Case

The applicant is required to show that there are high chances of success of his case on the merits. He will have to establish that his claim is not vexatious, but reasonably likely to succeed in court.

Irreparable Injury

Irreparable injury requires that the applicant prove he will incur severe and irreparable injury should the stay be denied, which indicates greater injury than what the opposing party may suffer by the granting of a stay.

Balance of convenience

The court considers which party will suffer more inconvenience if the stay is granted or refused. If the balance of convenience is in favor of the applicant then only a stay may be granted.

Each of these grounds ensures that stay orders are granted only when truly necessary to prevent unjust outcomes and maintain fairness in legal proceedings.

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Types of Stay Order

In India, stay orders can broadly be divided into different classifications based on the context under which they are issued. They are as follows:

• Stay of execution: This is a directing order to temporarily stop the enforcement of the decree or the order of a Court. Frequently, this is granted in a civil case so that the Court can buy time to hear an appeal before the judgment becomes operational.
• Stay of proceedings: This implies suspending ongoing trial in a given case. Sometimes, it is given to prevent two Court suits from proceeding simultaneously.'
• Stay of arrest: It is to be issued to prevent arrest. It is often awarded where the legality of the arrest may be questionable or during the pendency of anticipatory bail applications.
• Stay of Government Orders/Actions: It is granted to stay the operation of government orders, rules, or actions. It arises frequently in administrative and constitutional matters, when the government action has been challenged before the Court.
• Stay by Writ: The Supreme Court or High Courts, through the writ of Prohibition, can direct the lower Court or tribunal to stop proceedings in a case where the former Court has no jurisdiction to proceed with the case.

Legal Provisions and Jurisdiction

Some key provisions of the Code of Civil Procedure, 1908 on Stay Orders
The following are a few provisions within the Code of Civil Procedure, 1908 associated with stay orders in a civil suit:

Key provisions of the Code of Civil Procedure, 1908

• Section 10: A previously instituted suit with the same parties and subject matter pending before a court gives discretion on the part of the Court to stay a subsequent suit.
• Section 94(c): Power of court to issue temporary injunctions to prevent the ends of justice from being defeated.
• Section 151: Gives to the Court inherent powers to pass necessary orders for ensuring that justice is done and the Court process is not abused.
• Order 21 Rule 29: Empowers the Court to stay the execution of a decree on sufficient cause shown.
• Order 39: Empowers the issuing of temporary injunctions and other interim reliefs, inclusive of stay orders.

Key Provisions for Stay Orders Under The Code of Criminal Procedure, 1973

Provisions for stay orders in criminal cases are also framed as a part of the Code of Criminal Procedure, 1973, viz.:

• Section 389: The appellate Court may, during the pendency of an appeal, order that the execution of the sentence or order passed against the accused be suspended and also grant him bail where he is in confinement, whether convicted on an appeal or an original proceeding.
• Section 397: Provides for the power of the High Court or Sessions Judge to suspend the execution of any sentence or order during revision and directs the release of the accused on bail.
• Section 401: Enjoins the powers upon the High Court to suspend the execution of a sentence or order during a revision petition.
• Section 482: On inherent powers, the High Court can issue orders to prevent abuse of the process of the Court and to secure the ends of justice.

Limitations of A Stay Order:

There are certain limitations of stay order. These are as follows:

Challenges of obtaining stay orders

In order to get the stay order, the applicant has to prove that such a stay order is entirely essential in averting irreparable harm or injustice. This usually calls for ample evidence and a convincing argument. The Courts have legal standards and criteria that ought to be met if a stay order is to be availed. The opposite party in the case may file objections to the stay order with their reasons and evidence that the stay is not warranted.

Duration and Renewal

Stay orders are, almost by rule, temporary, in order to extend the stay, the applicant must file a renewal motion, usually conditioned on proving the continued validity of the grounds for the original stay, and, hence an extension would be appropriate. Renewal of the stay order lies entirely with the discretion of the Court, and the burden to prove why the stay should be extended has to be fulfilled all over again by the applicant.

Appellate Review

The grant of a stay order may be subjected to appellate review, that is, higher Courts reviewing and probably overturning the stay order issued by a lower Court. This adds another layer of complexity and uncertainty to the process. Appellate review is often a long process. It may further delay the pending case from reaching its final resolution, thus extending the uncertainty among parties.

Cost for Obtaining a Stay Order

The following are the main components of the cost involved in a request for a stay order:

Court fees:

Filing fees is taken for filing a petition or an application for a stay order. It can vary depending on the Court and nature of the case. Additional fees are paid for processing the documents and for administrative work in the Court.

Legal fees:

The advocate will charge some amount for the drafting of the petition, appearance in Court, and consultation. This may completely differ based on the experience and repute of the lawyer.

Documentation and miscellaneous costs:

All expenses incurred in preparing, notarizing and filing all documents and affidavits of a relative; photocopying, printing and obtaining certified copies fall under this heading.

Ordered costs by the Court:

There may be instances where the Court will insist that the petitioner deposit a sum as security or furnish a surety bond as a condition for passing the stay order.

Cost to the opposite party:

If the stay application is made during pending litigation, then, on granting a stay, the Court may award costs to the opposite party for expenses incurred by it, or where the stay is unjustified.

Expenses of experts:

Fees for expert testimony, valuation reports, or technical analysis may have to be incurred in difficult matters.

The exact cost for obtaining a stay order will be case-specific, depending on the circumstances involved and the requirements of the Court.

Consequences of Violating Stay Orders

Here are the major legal implications for violating an injunction order:

Civil prison:

Section 94(c) of CPC provides that in case of disobedience of a temporary injunction, the guilty person shall be committed to the civil prison and ordered that his property be attached and sold.

Contempt of Court:

Disobedience of a stay order is the contempt of Court. Against the violator, contempt proceedings can be launched. It is in that respect that the Court may, upon determination, impose penalties ranging from fines to imprisonment.

Effect on the pending case:

The disobedience of the order to stay may have an adverse effect on the positioning of the violator in the pending proceeding; the Court would take a stricter view of the violator's actions.

Damage to reputation:

A conviction following contempt proceedings is most likely to lead to reputational damage as such proceedings are matters of public record.

Costs and compensation:

Any act done in violation of an order of stay may be declared null and void. The violator may be required to pay the legal costs of the other party which were caused by the infringement. The Court may award compensation to the wronged party against damage or loss incurred out of the violation.
Violation of a stay order may attract very serious legal and personal consequences.

Latest Judgement of Supreme Court on Stay Order

The Constitution Bench of the Supreme Court in the case of High Court Bar Association, Allahabad v. State of Uttar Pradesh (2024) has overruled its decision passed in the case of Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation (2018) where it was decided by the Court that an interim order passed by a High Court in civil and criminal trials shall automatically expire after 6 months from the date of such order, unless extended by an express order.
While rendering its judgment, the Supreme Court emphasised on following aspects of passing stay orders:

• Automatic vacation of stay orders: It was held that an automatic vacation of stay order passed by the High Court cannot follow simply because of the passage of time. The direction in the judgment in Asian Resurfacing mandating such automatic vacation was rejected. ​
• Exercise of jurisdiction under Article 142: That the Court went on to explain the extent of its powers under Article 142 of the Constitution of India, continuing to caution that whereas this jurisdiction could be exercised for the purpose of doing complete justice between the parties, it could not do so at the expense of frustrating the substantive rights of the litigants or affecting those who were not parties to the proceedings.
• Interim orders or procedural directions: As a general rule, although the Supreme Court may issue procedural directions to facilitate the flow of the process of the judicial proceeding, it cannot encroach upon substantive rights or principles of natural justice. The right to be heard before an adverse order is passed is a substantive right and cannot be bypassed.
• Judicial legislation: The Court held that enforcement of an automatic timeline for expiry of stay orders is tantamount to judicial legislation and not falling within the ambit of judicial powers. It can be done only by the legislative legislature.
• Discretionary power of High Courts: While entertaining the issue of temporary relief and stay orders, the High Courts shall exercise the discretionary power.
• Interim orders and procedural directions: While procedural directions to facilitate the flow of the judicial process may be issued by the Supreme Court, they cannot encroach upon substantive rights or principles of natural justice. The right of being heard before an adverse order is passed is substantive and cannot be bypassed.
• Judicial legislation: The Court held that the enforcement of an automatic timeline for the expiry of stay orders is equivalent to judicial legislation, which falls outside the purview of judicial powers; this can be applied only and only by the legislative legislature.
• Discretion of High Courts: While dealing with the interim relief and stay orders, the High Courts should exercise discretionary power. It must respect the need for speedy justice; however, fairness should be protected and the principles of natural justice adhered to.
• Directions on pending cases: In cases where trials have ended owing to the automatic vacation of stay orders consequent to the Asian Resurfacing decision, such orders shall stand vacated.​​
• Directions for expeditious disposal: The Court ordered that the pending petitions be listed for expeditious disposal before appropriate benches as and when such petitions are ready, taking care to see that the proceedings are not delayed on account of procedural necessities, thus frustrating the ends of justice. ​It therefore reiterates that there has to be judicial cautiousness backed by the principles of natural justice, which were absolutely indispensable while emphasising the need for time-bound judiciary processes.

Final Word

Where going ahead with the case may result in irreparable damage to one of the parties, a stay order may be provided to temporarily suspend the process until such review is possible. At times, procedural errors or administrative faults in the case may call for a stay order so that the situation can be rectified before the case goes forward. A stay order may also be issued to ensure fairness in the prosecution of the process. For instance, further evidence could arise, or an appeal may have to be heard wherein the Court may order a stay to avoid distress from an unjust outcome. The stay order is an important legal instrument that ensures justice and fairness in cases by halting legal action or the execution of judgements in respect to certain circumstances.

Frequently Asked Questions About Stay Orders

Q. What is the validity of a stay order from a Court?

Stay orders may be temporary and can exist only until a certain event happens or for an indefinite period subject to further directions of the Court.

Q. Are stay orders permanent?

A stay order is not necessarily permanent; it is, in fact, a temporary measure adopted by the Court whereby it suspends or stops some kind of proceedings or action. A stay order might run for varying durations. It may be for some days, weeks, or till the decision on a certain event, like the end of an appeal.

Q. What is a legal notice for a stay order?

The legal notice for a stay order is a formal written document aimed at bringing to the attention of relevant parties an intention to obtain a stay order from the Court.

About The Author: 

Adv. Sagar Mahajan is a dedicated lawyer practicing at the District and Sessions Court in Bhusawal, with 8 years of experience in the legal profession. Following in the footsteps of his father, a well-respected lawyer in civil and criminal law, Sagar is currently pursuing a PhD in Law at North Maharashtra University, Jalgaon. He has successfully handled a diverse array of cases, including matrimonial disputes, civil and consumer cases, criminal cases, and motor accident claims. Additionally, he excels in non-litigation work, such as drafting contracts, tenancy agreements, and more. With a modern office and an experienced team, he prioritizes honesty and quality in his practice, extending his services to various courts across Maharashtra.