Stay Order: Meaning and Application

The court has a duty to do complete justice in a dispute; therefore, in order to accomplish this goal, the subject matter of the dispute must be preserved until the final decision in the suit is made. So if it is proved before the court by the plaintiff that the defendant is going to dispose of the suit property or is doing such activity in relation to the suit property that if it is permitted then the suit property will be destroyed forever and no justice can be done thereafter, the court may, on being satisfied that such circumstances exist wherein it is necessary to protect and preserve the suit property, grant a stay order to the plaintiff prohibiting the defendant from carrying out any activity mentioned in the stay order itself in relation to the suit property for a definite period or until the further orders of the court.

What is Stay Order?

A stay order is a temporary relief granted to stop the activity carried out by the parties in relation to the subject matter of dispute until further orders of the court are issued on the matter.

Legal Provisions

The civil court has inherent powers under Section 151 of the Code of Civil Procedure, which states that a court may grant a stay order in any particular suit or proceeding for which there is no express provision in the code of civil procedure.

A special provision is provided under Order 39, Rule 1, and Rule 2 of the Code of Civil Procedure for granting a temporary injunction in a civil proceeding. A temporary injunction is also a kind of stay in a suit against the defendant to prevent him from destroying the suit's property. A stay under this provision is granted only when the court is satisfied that there is a prima facie case that the suit property is required to be immediately protected against the activities of the defendant in order to achieve justice in that matter.

Effect of Stay Order

Once a stay is granted by the court, prohibiting the carrying out of a particular activity by the defendant against the suit property, the defendant is legally stopped from further doing the said activity. However, if the defendant continues with the said activity, violating the stay order, the plaintiff may apply to the court either to arrest the defendant and detain him in the civil prison or to attach the suit property by giving physical possession of the suit property to the receiver or to any other person appointed by the court.

On the other hand, if the defendant feels aggrieved by the stay order, he may apply to the superior court to set aside the stay order in an appeal. If the stay order is set aside on the defendant's appeal, he is free to do the said activity again.

Duration of Stay

Generally, a stay granted by the court is of a temporary in nature. It will remain in force for a particular period of time, say, one week or one month from the date of order or until further order of the court. However, if a definite time period for enforcement is not provided in the stay order itself, a temporary stay order will remain in force for decades or more due to the longer pendency of the civil suits.

Moreover, due to the change in circumstances, any party to the suit may apply to the same court or to the superior court to set aside the stay order if it is shown to the satisfaction of the court that there is no harm to the suit's property if the stay is vacated. The court may set aside the stay order at any time.

Use and Misuse of the Provision

The legal provision for granting a stay order is excessively misused by the affluent party to the suit. The court will generally grant stay orders in a suit, keeping in mind that it will preserve the suit's property during the pendency of the suit. However, the affluent party usually takes advantage of the stay by keeping the suit pending for decades. This way, the defendant is subjected to harassment due to unnecessary litigation. And he will be compelled to accept the conditions of the affluent party, either to sell the property at throwaway prices or otherwise abstain from using the suit property during his life.

To prevent such abuse of the legal provision, the Supreme Court of India directed in Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation that in all pending cases where a stay against proceedings of a civil or criminal trial is in effect, the stay will expire six months from March 28, 2018, unless extended in an exceptional case by a Speaking Order.


In any civil proceeding, a stay is generally granted by the court to preserve the suit property from being alienated wrongfully by one party before the final disposal of the suit. However, this provision is highly misused by the affluent party against the poor party for achieving their oblique purpose by engaging the suit property in false litigation for a long time and restricting the beneficial use of the property by obtaining a stay in such a suit against the use of the property for an indefinitely long period. However, the Supreme Court has recently held that any stay in any legal proceedings shall last only for six months, and if the stay is to operate beyond that period, the court has to extend the time by granting a speaking order for extension of stay. So this way, abuse of a legal provision may be controlled, and the objective of giving free, fair, and speedy justice may be achieved. 

Frequently Asked Questions

Q1. Under which provisions of the Code of Civil Procedure can a stay order be granted by the civil court?

Ans. Under Section 151 of the Code of Civil Procedure, the civil court is empowered with the "inherent powers of the court" to grant a stay in any matter before it.

Q2. What is the remedy against the court's stay order?

Ans. The remedy against the stay granted by the court is to get the stay order set aside by the higher court, either in appeal or in revision.

Q3. How long a stay order of the court will remain in force?

Ans. A stay order, once granted, will remain effective for a period of six months from the date of the order unless it is vacated or set aside by the order of the higher court.

Q4. Whether a stay order is rendered inoperative automatically after the passage of time?

Ans. Yes, a stay order granted by the court will become inoperative after the expiration of a period of six months from the date of the order unless the stay is extended by the speaking order of the same court.

Updated on: 06-Mar-2023

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