Introduction
A stay order is a temporary suspension of a judicial proceeding or an action by the opposing party. The High Court grants a stay order to prevent an injustice, maintain the status quo, or protect legal rights until the matter is fully heard and decided.
A stay order can be sought in civil, criminal, and writ matters under different legal provisions. The procedure for obtaining a stay order from the High Court varies depending on the case type and legal grounds.
This guide explains:
- Types of stay orders
- Legal provisions for stay orders
- Step-by-step process to obtain a stay order
- Time duration and validity of a stay order
- Consequences of violating a stay order
- Frequently asked questions (FAQs)
Types of Stay Orders
Stay orders from the High Court can be broadly classified into the following types:
- Stay of Proceedings – Stops ongoing judicial proceedings in lower courts.
- Stay of Execution – Prevents the execution of a lower court’s decree or judgment.
- Stay on Government Action – Stops administrative actions like demolition, eviction, etc.
- Stay on Arrest – Prevents arrest in criminal cases.
- Stay on Property Matters – Stops the transfer, sale, or possession of property.
Legal Provisions for Stay Orders in High Court
The following laws govern stay orders:
- Order 41 Rule 5 of CPC – Stay of execution of decrees in civil appeals.
- Section 151 of CPC – Inherent powers of the court to grant a stay order in the interest of justice.
- Article 226 & 227 of the Constitution of India – High Courts can issue writs, including stay orders, against government actions.
- Section 482 of CrPC – High Court’s power to grant a stay in criminal matters to prevent abuse of the legal process.
Procedure to Get a Stay Order from the High Court
Step 1: Consult a Lawyer
Engage a lawyer experienced in High Court matters. They will analyze your case, prepare arguments, and draft the necessary documents.
Step 2: File a Stay Petition
A stay petition is filed along with the main case (appeal, writ, or revision) or as an interim relief application. It should contain:
- Facts of the case
- Legal grounds for seeking a stay
- Irreparable harm if the stay is not granted
- Supporting documents and evidence
Step 3: Payment of Court Fees
The prescribed court fees must be paid based on the nature of the stay order being sought.
Step 4: Notice to the Opposing Party
In most cases, the High Court issues a notice to the opposite party and gives them an opportunity to respond. However, in urgent matters, the court may grant an ex-parte stay order (without hearing the other side).
Step 5: Hearing Before the High Court
The High Court hears both parties and examines:
- Prima facie case (whether the case has legal merit).
- Balance of convenience (whether granting the stay will cause more harm than denying it).
- Irreparable harm (whether the petitioner will suffer damage that cannot be compensated if the stay is not granted).
If satisfied, the court issues a stay order.
Step 6: Compliance and Implementation
Once granted, the stay order must be communicated to the relevant authorities, court, or parties through legal notices.
Duration and Validity of a Stay Order
- A stay order is temporary and remains in force until the next date of hearing or until further orders of the High Court.
- In some cases, the court may specify a fixed duration for the stay order.
- If no specific duration is mentioned, it remains in effect until modified or vacated by the court.
Consequences of Violating a Stay Order
If a person or authority ignores a stay order, the High Court can:
- Initiate contempt of court proceedings under Contempt of Courts Act, 1971.
- Impose fines or penalties.
- Order cancellation of the illegal action taken in violation of the stay order.
Frequently Asked Questions (FAQs)
Q1: What is the cost of filing a stay order in the High Court?
The cost depends on:
- Court fees (varies by state and case type).
- Lawyer’s professional fees.
- Documentation charges.
Q2: How long does it take to get a stay order?
- Urgent matters: Stay can be granted on the same day (ex-parte stay).
- Normal cases: It may take 2-4 weeks, depending on the court’s workload.
Q3: Can a stay order be challenged?
Yes, the opposite party can file an application to vacate or modify the stay order.
Q4: What happens if the stay order expires?
If the stay order is not extended, the previous order or action will resume. The petitioner must apply for an extension of the stay before it expires.
Q5: Can a stay order be granted without hearing the other party?
Yes, an ex-parte stay order can be granted in urgent matters, but it is temporary and the opposite party will be heard later.
Q6: Can a High Court stay order be enforced in another state?
Yes, a stay order issued by one High Court is applicable across India, unless limited by the court.
Q7: What happens if the High Court rejects my stay order petition?
You can:
- Appeal to the Supreme Court under Article 136 of the Constitution.
- Apply for modification or reconsideration with new grounds.
Q8: Can I get a stay order against eviction or demolition?
Yes, a stay order can be sought against eviction, demolition, or seizure of property, provided there is a strong legal ground.
Q9: Can a stay order be extended?
Yes, you must apply for an extension before its expiry, showing that the circumstances requiring the stay still exist.
Q10: What happens if the opposing party violates the stay order?
You can file a contempt of court petition under the Contempt of Courts Act, 1971, seeking penalties against the violator.
Conclusion
A stay order is a powerful legal remedy that temporarily halts legal proceedings, government actions, or execution of judgments. It is granted only when the applicant establishes a strong case, irreparable loss, and balance of convenience in their favor. The High Court has wide discretion to grant, modify, or vacate stay orders based on legal merit. To ensure timely relief, it is crucial to file a well-drafted stay petition, present strong arguments, and seek legal assistance.
Important: Kindly Refer New Corresponding Sections of Bharatiya Nyaya Sanhita 2023, (BNS); Bharatiya Nagarik Suraksha Sanhita 2023, (BNSS); & Bharatiya Sakshya Adhiniyam 2023, (BSA) for IPC; CrPC & IEA used in the article.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Adcocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304