§ A temporary injunction

An order under Order XXXIX Rules 1 and 2, granted where property in dispute is in danger, where the defendant threatens to dispose of property to defraud creditors, or where he threatens to dispossess the plaintiff or otherwise injure him, or to restrain the breach of a contract or other injury.

It is addressed to a party. The operative words are that he be restrained from doing something, or be directed to do it.

It is enforced against him personally. Under Rule 2A, disobedience is met with attachment of his property and detention in civil prison for up to three months.

§ A stay

An order suspending a proceeding. The Code provides for it in several places: Section 10, where a previously instituted suit is pending on the same matter; Order XLI Rule 5, staying execution pending appeal; Order XXI Rule 26, where the executing court stays execution pending an application to the court that passed the decree; and Section 151, where no specific provision fits.

It is addressed in substance to the forum. The proceeding stops, and the court before which it is pending may not take it further while the stay subsists.

A step taken in the face of a stay is a nullity to that extent, because the court had no authority to take it.

What it operates on

A PERSON: a party to the suit

A PROCEEDING: a suit, an appeal or an execution

Source

Section 94(c) and Order XXXIX Rules 1 and 2

Section 10, Order XLI Rule 5, Order XXI Rule 26, and Section 151

The test

Prima facie case, balance of convenience, irreparable injury

Varies: Section 10 is mandatory on its conditions; Order XLI Rule 5 requires substantial loss, no unreasonable delay and SECURITY

Who is bound

The party restrained, and those acting through him with knowledge

The court or authority before which the proceeding is pending

Effect of breach

Disobedience under Order XXXIX Rule 2A: attachment and detention up to three months

A step taken in the face of the stay is a nullity to that extent

Is the act itself void?

Not automatically; the act is a disobedience and may be punished, and the court may order restoration

Yes, so far as the proceeding is concerned

Against a proceeding elsewhere

A court may restrain a PARTY from prosecuting a proceeding, since the order binds him personally

A court can stay only a proceeding it has authority over

Appeal

Order XLIII Rule 1(r)

Depends on the provision: an order under Section 10 is not itself in the appealable list, and Order XLIII Rule 1 governs the rest

§ Restraining a party, when the proceeding cannot be stayed

A court cannot stay a proceeding in a court it has no authority over. A civil court cannot stay a proceeding before another court of coordinate or superior jurisdiction.

But it may sometimes restrain a PARTY before it from prosecuting such a proceeding, because the order operates on the person, not on the other forum. That is why the distinction is practical rather than verbal.

The limit, however, is express. Section 41(a) and (b) of the Specific Relief Act, 1963 provide that an injunction cannot be granted to restrain a person from prosecuting a pending proceeding in a court, unless the restraint is necessary to prevent a multiplicity of proceedings, nor to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought.

So the correct statement is: the injunction reaches the person, and that would in principle allow what a stay could not; but the Specific Relief Act itself confines that power, and it is exercised with care.

Section 10

The TRIAL of a suit where the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties pending in a competent court

Order XLI Rule 5

Execution of the decree appealed from, and only where the court is satisfied of substantial loss, no unreasonable delay, and the furnishing of SECURITY

Order XLI Rule 6

The sale of immovable property in execution, pending an appeal, on security being furnished

Order XXI Rule 26

Execution by the executing court, pending an application to the court that passed the decree, on security or on such conditions as it thinks fit

Order XXI Rule 29

Execution where a suit is pending against the decree-holder by the judgment-debtor, on such terms as the court thinks fit

Order XXIII Rule 1(4) and Order XXXV Rule 3

Proceedings stayed in the situations there provided

Section 151

A proceeding where no express provision applies but the ends of justice require it, as where two connected matters are pending and Section 10 does not fit