Generally speaking, when the order of the lower court is not stayed during the pendency of appeal in the higher court, it can be implemented (though, sometimes, out of deference to the admission of the appeal in higher court, the implementation may be deferred even in the absence of the stay). In such a case, if the order is implemented, and thereafter, if the higher court reverses the order of the lower court in appeal, then depending on the nature of the order, its effect may be reversed. For example, if the order relates to recovery of some amount and if it is implemented during pendency of appeal, and then the order is reversed by the higher court, in such a situation, the amount recovered may have to be returned. So, in such a situation, though the stay is not granted during pendency of appeal, yet the implementation of the order of lower court may be subject to the final outcome of appeal.
But, in certain situations, the nature of order is such that once implemented, it cannot be reversed. For example, if order relates to sentence of imprisonment of a person, then once the imprisonment has already been undergone in the absence of a stay on order of sentence, then if the order is reversed in appeal it would not be possible to undo the implementation of the order. However, even in such cases, it may not be necessary that the order of the lower court is always stayed by the higher court while admitting the appeal. But, in such a case, it may be impressed upon the higher court to stay the order of the lower court in the interests of justice, though ultimately, it is up to the higher court to grant the stay or not.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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