Difference between a stay order and an injunction

Stay Order injunction

Stay Order
An order of stay indicates stoppage, arrest or suspension of judicial proceedings. Among various other uses, an order of stay is primarily passed against execution (putting the decree into practice) of a decree (an adjudication determining the rights of the parties). A stay is made against execution of a decree to enable the judgment-debtor (the one against the interests of whom the decree has been passed) to appeal to an appellate court against such a decree (Order 21, Rule 26; Order 41, Rule 5 the CPC, 1908). Such an order prohibits commencement of any proceeding for execution of the said decree.

An order of stay of proceedings may also be made against a sale (Order 21, Rule 59), in a suit against a corporation (Order 30), in a suit involving a minor (Order 32), interpleader suits (Order 35), summary suits (Order 37), in case of reference to a High Court (Order 46). An order of stay of proceedings is available to the Civil Courts by virtue of their inherent power under Section 151 (?) as well as to the Supreme Court and the High Courts.

Injunction Order
An injunction is an order of the court compelling a person to do or not to carry out a particular action. They are of various types:

  • Temporary (Order 39 of the Code of Civil Procedure, 1908) and Permanent (Section 38-42 of the Specific Relief Act, 1963): The former is granted during the pendency of the suit based on various factors (preservation of status quo, balance of convenience, a prima facie case, irreparable injury, etc.) while the latter permanently prohibits or mandates a person to do certain actions.
  • Preventive (ones that restrain actions) and mandatory (ones that compel actions).
  • Ad-interim (ones granted during pendency of application and operative till its disposal) and interim (ones that are granted at disposal of application and operative till disposal of the suit).

As has become clear from the above, an injunction is applicable against a person while an order of stay operates against a court. An injunction operates as soon as it is issued but a stay order operates only when it is communicated to the court to which it is issued (Mulraj v. Murti Raghonathji Maharaj, 1967). Proceedings taken in contravention of a stay order are void ab initio while those against an injunction are not null and void but subject to punishment. (Subhash Kumar v. Sheo Balak Singh, AIR 1975 Pat 307; Tribakro v. Sampatrao, AIR 1933 Nag 153).

Posted in Property in India.