The article is written by Meghna Mishra of Christ Academy Institute of Law pursuing BA. LL.B, during her internship at Ledroit India.

LIST OF TOPICS COVERED

1. Introduction
2. Meaning and nature of injunctions
3. Types of injunctions under the Specific Relief Act, 1963
4. Temporary/interim injunctions under Order 39 CPC
5. Legal principles (prima facie case, irreparable injury, balance of convenience)
6. Ex parte and ad-interim injunctions
7. Judicial evolution of interim injunction principles
8. Meaning, scope, and purpose of stay orders
9. Stay of proceedings and stay of execution under CPC
10. Order XLI Rule 5 CPC: statutory requirements
11. Differences between injunctions and stay orders
12. Sample illustrations to understand both remedies
13. Drafting formats for injunction and stay applications
14. Landmark and recent case laws
15. Common mistakes and drafting pitfalls
16. Conclusion

KEYWORDS

Interim Injunction; Stay Order; Order 39 CPC; Order 41 Rule 5 CPC; Irreparable Injury; Balance of Convenience

ABSTRACT

Interim injunctions and stay orders are two of the most prominent remedies available to the parties. These are purely designed to protect parties from an irreversible harm or damage that may occur while a case is still pending. They don’t only act as remedies but also help in safeguarding the legal rights of the party and maintaining stability for ongoing disputes, and ensure that the final judgment does not become vague and meaningless. 

Interim injunctions are stated under Order 39 CPC to prevent a party to the suit from taking actions that may cause loss, damage, or infringement of rights of the other party whereas Stay orders are covered under Order 41 Rule 5 CPC and their purpose is to temporarily pause the proceedings or stop execution of a decree.

Courts apply well-established principles such as prima facie case, irreparable injury, and balance of convenience while granting interim injunctions, and examine substantial loss, absence of delay, and security for granting of stay orders. This research delves into the said concepts in detail, discusses landmark judgments, provides illustrations, and outlines drafting formats. It aims to offer a clear and comprehensive understanding suitable for the readers that might include students, researchers, and early-stage practitioners.

INTRODUCTION

Civil disputes in India are very notorious for their never ending process and adjournments and often take months, if not years to reach a conclusion and then pass a final judgement. Even when advocates work diligently, parties often spend months—sometimes years—moving in and out of courts without immediate relief. However, we can actually ease their distress and prevent injustice for the time being, by temporarily solving their problem with legal tools like temporary injunction and stay order that is one such remedy available to the parties in the Code of Civil Procedure, 1908.

These interim remedies play a crucial role in ensuring that the judicial process remains meaningful. Without temporary relief, a party could suffer damage that may be irreversible by the time the final judgment is delivered. For example, disputed property may be sold to a  third party or a structure may be demolished among other potential harms, making the eventual outcome of the suit ineffective. Temporary injunctions, governed by Order XXXIX of the Code of Civil Procedure, and stay orders, primarily addressed under Order XLI Rule 5, act as preventive measures that maintain the status quo, prevent irreparable harm, and uphold the administration of justice. Understanding their legal principles, procedural requirements, and practical application is essential for effective civil litigation. During the pendency of a case, there is always a risk that parties may take steps which could undermine the final decree. This is precisely why courts exercise their discretionary powers to grant temporary and interim remedies when required.

Two of the most frequently used temporary remedies are:

• Interim Injunctions – orders restraining a party from doing something harmful.
• Stay Orders – orders pausing judicial proceedings or stopping execution of a decree.

Both of these remedies serve as a preventive and protective instrument to ensure that justice is not defeated by delay or wrongful conduct during litigation. They reflect the role of the courts in maintaining balance and fairness while the main suit is pending, while the rights of the parties are still in question.

INJUNCTION : MEANING 

An injunction is a kind of judicial order that requires a party to either do a particular act or to abstain from doing a particular act. It is one of the most important remedies available in civil law to prevent wrongful actions, protect rights, and preserve the subject matter of a dispute until the court reaches a final decision. Unlike ordinary remedies that compensate for harm after it occurs, an injunction focuses on preventing harm before it happens.

Injunctions are considered equitable remedies, which means they originate from principles of natural justice like fairness rather than strict legal codes. Courts grant injunctions only when they believe that doing so is necessary to achieve justice in the circumstances, and therefore, the remedy is discretionary in nature, if not supported by strong reasoning and need for it.

The substantive law governing injunctions in India is primarily contained in the Specific Relief Act, 1963 (SRA)

Under the Specific Relief Act, injunctions serve several important functions include: 

1. Protecting the rights of the parties: They safeguard an individual’s legal or equitable rights from being violated during litigation.
2. Prevent wrongs: They stop a party from committing acts that may cause harm, injury, or create irreversible consequences.
3. Ensure justice when monetary relief is insufficient: If damages or financial compensation cannot adequately remedy the harm, courts step in with injunctions to prevent the harm altogether.
4. Preserve the status quo: Injunctions help maintain the existing state of affairs so the eventual judgment remains meaningful.
5. Avoid multiplicity of suits: By preventing ongoing or potential wrongful acts, courts reduce the need for multiple future litigations.

Thus, an injunction acts as a protective shield to ensure that the court’s final decision is effective and that no party gains an unfair advantage through wrongful conduct during the pendency of a case.

Temporary/Interim Injunctions Under Order 39 CPC

These injunctions prevent a party from taking actions that could:

• Damage their property,
• Causes breach of contract,
• Violates the legal rights, and/or
• Lead to irreparable harm.

Order 39 Rules 1 and 2 of CPC empowers the courts to grant injunctions in cases involving:

• Waste, damage, or alienation of property
• Threatened breach of contract
• Invasion of personal or property rights

Temporary injunctions help maintain the status quo until the court reaches a final decision.

Legal Principles Courts Apply While Granting Interim Injunctions

The Supreme Court has repeatedly held that injunctions must be granted only after satisfying three essential tests. These tests ensure fairness and prevent misuse of the remedy.

1. Prima Facie Case

The party seeking injunction must show a serious question that requires trial.
It does not mean they must prove they will win, only that their claim is not frivolous.

The Supreme Court, in the case of Dalpat Kumar & Anr Vs Prahlad Singh (1991) clarified that a prima facie case requires more than a mere triable issue and that irreparable injury must be such that monetary compensation cannot adequately remedy it. In the same case, three essential conditions for granting a temporary injunction were also laid down by the hon’ble court, i.e, prima facie case, irreparable injury, and balance of convenience.

Irreparable Injury

Injury must be such that money cannot compensate for it.

Includes cases wherein the following are involved:

• Destruction of immovable property
• Disclosure of trade secrets
• Publication of defamatory material
• Environmental harm

Balance of Convenience

Once the court is satisfied that a prima facie case exists, it must then look at the balance of convenience — meaning it has to decide which party will face greater difficulty if the injunction is granted or refused. This involves comparing the likely harm, inconvenience, or disadvantage each side may experience.

The injunction is granted only when the court finds that the applicant would suffer the more serious hardship.

Ex Parte and Ad-Interim Injunctions

Sometimes urgent situations require courts to grant immediate relief without giving the opposite party an opportunity to be heard. These are known as ex parte or ad-interim injunctions. They are granted when delaying the order, even for a short time, would defeat the very purpose of seeking the injunction. Situations involving imminent demolition, dispossession, sale of property, or misuse of confidential information often fall into this category.

However, the Supreme Court has repeatedly emphasised that ex parte injunctions must be granted only in truly exceptional circumstances. In Morgan Stanley Mutual Fund v. Kartick Das (1994), the Court held that ex parte orders are justified only when there is a grave and immediate threat, and the applicant would suffer irreparable harm if the court waits for the usual notice-and-hearing process. The Court also noted that such orders should be granted sparingly because they temporarily restrict the rights of the other party without giving them a chance to defend themselves.

To prevent misuse, courts are expected to:

• Record specific reasons showing urgency
• Grant such orders for a limited duration
• Direct the plaintiff to serve notice immediately
• Ensure that the defendant gets an early opportunity to present their case

Thus, while ex parte injunctions are an important tool for preventing sudden or irreversible harm, they must be exercised with caution, responsibility, and judicial restraint.

The Supreme Court in case of Morgan Stanley Mutual Fund vs Kartick Das  held that ex parte injunctions must be:

• Brief,
• Time-bound, and
• Based on strict scrutiny.

Judicial Evolution and Principles

The Supreme Court in case of  Wander Ltd. v Antox India (1990)  emphasised that appellate courts should not lightly interfere with the grant or refusal of interim injunctions since such orders are discretionary in nature, and intervention is justified only when the discretion is exercised in an arbitrary, capricious or perverse manner.

The Court in the case of  Gujarat Bottling Co. Ltd v. Coca-Cola Co. (1995)  the Supreme Court examined the enforceability of negative covenants in commercial agreements and clarified how interim injunctions operate within the framework of business contracts. The Court held that negative covenants operating during the subsistence of an agreement do not amount to restraint of trade under Section 27 of the Indian Contract Act.

More importantly, the Court observed that interim injunctions may be granted to preserve the contractual balance between parties and prevent actions that undermine the commercial purpose of the agreement. This case therefore demonstrates the application of Order XXXIX CPC in complex commercial settings, where the court protects parties from irreparable harm arising from breach of contractual obligations.

The Court discouraged indefinite stay orders and directed that all stays should be time-bound in the case of  Asian Resurfacing of Road Agency v. CBI (2018), the court addressed the issue of prolonged pendency caused by stay orders granted by High Courts and subordinate courts. The Court expressed concern that stay orders—particularly those granted in criminal and civil proceedings—were being misused to indefinitely stall trials. To prevent injustice arising from such delays, the Court held that stay orders should not be allowed to continue endlessly and suggested that they ordinarily lapse after six months unless specifically extended.

Although this principle was later reconsidered, the judgment is highly relevant to the study of stay orders because it highlights the judiciary’s attempt to balance the right to appeal with the need to prevent abuse of the process through long-standing stays.

The Constitution Bench in the case of  High Court Bar Association, Allahabad v. State of U.P (2024) clarified and refined the law on stay orders.

STAY ORDER : MEANING

Stay orders operate differently from injunctions. While an injunction controls the actions and conduct of parties, a stay order regulates the progress of judicial proceedings. In other words, an injunction tells a party what they can or cannot do, whereas a stay order tells a court or authority to temporarily suspend an act or proceeding.

A stay order may pause:

• A decree – preventing its enforcement or execution.
• Judicial proceedings – stopping a case from moving forward in a lower court while an appeal or a related matter is pending.
• Execution operations – halting actions such as attachment, sale of property, delivery of possession, or arrest in execution proceedings.

The primary objective of a stay order is to prevent injustice that may occur if proceedings continue unchecked, especially when a superior court is still examining the correctness of an order or decree.

For example, if an appeal challenges a decree directing immediate possession of property, allowing execution to proceed before the appeal is decided may render the entire appeal meaningless. Similarly, if a lower court continues with a trial on an issue already pending before a higher court, it may lead to conflicting outcomes.

Under Order XLI Rule 5 CPC, stay orders are discretionary and are granted only when certain strict requirements are met:

• The appellant must demonstrate substantial loss if the stay is not granted.
• The application must be filed without unreasonable delay.
• Security or an undertaking may be required to safeguard the respondent’s interest.

Courts grant stay orders to ensure that:

• Appeals remain effective and are not rendered infructuous,
• Multiplicity of proceedings is avoided, and
• The judicial process functions fairly and coherently.

Thus, stay orders play a crucial role in maintaining the integrity of appellate proceedings and ensuring that no irreversible harm occurs while a superior court is examining the legality of a decision.

Types of Stays in Civil Procedure

Stay of Proceedings : Court pauses an ongoing suit or proceeding.

Stay of Execution : Court pauses the enforcement of a decree.

Example includes:
A tenant appeals an eviction decree; the appellate court may stay execution until the appeal is decided.

Order XLI Rule 5 CPC: Requirements for Stay

Order 41 Rule 5 deals with stay by the appellate court.

The rule states that an appeal does not automatically operate as a stay.

To obtain a stay, the applicant must show:

1.Substantial Loss : The foremost requirement for obtaining a stay order under Order XLI Rule 5 is that the applicant must demonstrate that they will suffer substantial loss if the stay is not granted. “Substantial loss” refers to a level of harm that goes beyond ordinary inconvenience or financial difficulty. It must be of such a nature that, if the decree is executed or the proceedings continue, the appeal—if ultimately successful—would be rendered ineffective or meaningless.

This may include situations where irreversible actions (such as transfer of property, demolition, or eviction) are likely to occur, or where the execution of a monetary decree may cause serious financial burden that cannot be adequately remedied later. The Supreme Court has repeatedly emphasised that unless substantial loss is clearly established, the court should be slow to interfere with the decree of a lower court.

2. No Unreasonable Delay

A stay application must be filed without unreasonable delay. Courts require prompt action because delay suggests either lack of urgency or an attempt to misuse the appellate process. If the applicant approaches the court long after the decree has been passed or execution has commenced, the court may refuse the stay on the ground that the delay indicates acquiescence or tactical behaviour. This requirement ensures that a party does not wait for the decree to become inconvenient and then seek a stay at the last moment. Prompt filing reflects genuine need for protection and supports the applicant’s claim that execution would cause substantial loss.

3. Security or Undertaking

Order XLI Rule 5(3)(c) requires the applicant to provide security to the satisfaction of the court. This condition ensures that the respondent is not unfairly prejudiced by the stay order. Security may be in the form of a monetary deposit, bank guarantee, surety, or any safeguard the court considers appropriate. The purpose is to compensate the respondent if the appeal ultimately fails. In many cases, courts also require an undertaking that the appellant will not alienate property, will comply with eventual orders, or will pay decretal amounts if directed. Security functions as a protective measure—balancing the interests of both parties and ensuring that the stay does not operate as an unfair advantage to the appellant.

DISTINCTION : STAY ORDER AND INTERIM INJUNCTION

Although interim injunctions and stay orders are both temporary remedies under the Code of Civil Procedure, they operate in fundamentally different spheres. An interim injunction regulates the conduct of parties by restraining them from undertaking certain actions that may cause harm or alter the subject-matter of the dispute.

It is governed by Order XXXIX CPC and functions as an equitable remedy, granted on the basis of fairness, balance of convenience, and the need to prevent irreparable harm. In contrast, a stay order controls the actions of the court rather than the actions of the parties. It is governed by Order XLI Rule 5 CPC and serves as a supervisory remedy used primarily in appellate proceedings to suspend the operation of a decree, halt ongoing judicial proceedings, or pause execution processes.

The underlying purpose of an interim injunction is to prevent harm or wrongful conduct during litigation, whereas the purpose of a stay order is to prevent injustice that may occur if proceedings or execution continue while an appeal is still pending. For example, an injunction may restrain a party from raising construction on disputed land, while a stay order may suspend the execution of a decree directing immediate possession. Thus, while both remedies aim to preserve the integrity of the judicial process, they differ in scope, nature, authority, and the type of protection they offer.

ILLUSTRATIONS

1: Interim Injunction: A neighbour who is trying to demolish a sharing wall used by the client.
The client can seek an interim injunction under Order 39 to stop this demolition until the case concludes.

2: Stay Order : A trial court decrees eviction. The tenant appeals and seeks stay of execution under Order 41 Rule 5 so the decree is not enforced during the appeal.

Drafting Format for Interim Injunction Application

Title:  Application under Order XXXIX Rules 1 & 2 read with Section 151 CPC

Structure:

1. Court name
2. Case title and number
3. Facts in chronological order
4. Grounds for injunction:
   • Prima facie case
   • Irreparable injury
   • Balance of convenience
5. Urgency (if seeking ex parte)
6. Prayer
7. Affidavit
   Annexures

Drafting Format for Stay Application (Order 41 Rule 5)

Title: Application under Order XLI Rule 5 CPC seeking Stay of Execution

Structure:

1. Details of decree appealed
2. Grounds for stay:
   • Substantial loss
   • No delay
   • Security
3. Prayer
4. Affidavit
5. Documents

 Common Drafting Mistakes and How to Avoid Them

• Not attaching relevant documents
• Vague or emotional grounds
• Not proving irreparable harm
• Overbroad prayers
• Suppressing facts
• Filing late
• Not offering security in stay applications

Avoiding these errors strengthens the application.

Conclusion

Interim injunctions and stay orders are essential tools for ensuring fairness and preventing injustice during the pendency of civil proceedings. While interim injunctions under Order 39 CPC protect parties from immediate and irreparable harm, stay orders under Order 41 Rule 5 CPC prevent the effects of a decree from causing irreversible damage before an appeal is decided. Courts apply principles such as prima facie case, irreparable injury, balance of convenience, substantial loss, and timely application to maintain equilibrium in litigation. Proper drafting and understanding of these remedies help ensure that justice is not compromised by delay or wrongful conduct. Mastery over these concepts is crucial for effective legal practice.