1. ' RAHMAT HUSSAIN JAFFERI, J.---On 2-6-2005, the plaintiff filed the C.M.A. No.4705 of 2005 to suspend the operation of decree dated 1-6-2005 by which the plaint was rejected under Order VII, rule 11, C.P.C.
2. ' The fact giving rise to the present application are that the plaintiff filed the suit for declaration, Specific performance of Agreement, Permanent and Mandatory Injunctions. The defendant No.2 filed an application under Order VII, rule 11, C.P.C. After hearing the parties' counsel, the said application was allowed and the plaint was rejected under Order VII, rule 11, C.P.C. By order dated 1- 6-2005.
3. ' I have heard the learned Advocate for the plaintiff and perused the record of this case very carefully.
4. ' The trial Court has been given Power to stay the Execution of appealable decree under Order XLI, rule 5(2), C.P.C. The said provision reads as under:-- "5. Stay by Appellate Court.---(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.
5. Stay by Court which passed the decree.---(2) Where an application is made for stay of execution of appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.
(3) No order for stay of execution shall be made under sub-rule
(1) or sub-rule (2) unless the Court making it is satisfied.
(a) that substantial loss may result to the party applying for stay for execution unless the order is made,
(b) that the application has been made without unreasonable delay; and
(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.
(4) Notwithstanding anything contained in sub-rule (3), the Court may make an ex parte order for stay of execution pending the hearing of the application."
6. In the present case the decree is appealable therefore, this Court has power to stay such decree on fulfillment of following conditions:--
(a) There should be sufficient cause for stay of decree.
(b) The application should establish that substantial loss will result if the execution is allowed to proceed.
(c) Security must be obtained for the performance of such decree or decree as may ultimately be passed.
(d) The application for stay should be made without unreasonable delay.
7. From the above provisions of law it is clear that the rule will apply only when the decree is capable of execution. The decree in the present form is not capable of execution. However, important condition for grant of stay is that if the stay is not granted then substantial loss will result if the execution is allowed to proceed.
8. I have gone through the application filed by the plaintiff and find that it has been filed on the ground that the plaintiff intends to file appeal, therefore, the decree may be suspended. It will be noticed that the ground taken in the application is not covered under Order XLI, rule 5, C.P.C., as such, the decree cannot be suspended on the above mentioned ground. No other ground has been mentioned by the plaintiffs in the application so as to attract the provisions of Order XLI, rule (5)(2), C.P.C.. However, the Hon'ble Supreme Court of Pakistan in the case of Kohinoor Sugar Mills Ltd. v. Kohinoor Textile Mills Ltd. (1996 SCM R 1883) examined the above provisions of law. In the said case it was simply alleged that the party would suffer a loss but did not elaborate such ground, therefore, it was held that it was not a sufficient compliance of the above provisions of law. At page 1886 it has been observed as under:-- "From the bare reading of the above it can be safely said that an order staying execution of money decree is discretionary with the Court but such discretion has to be exercised in a judicial manner and for that reason it has been made obligatory that the Court shall be satisfied by reasonable grounds that "substantial loss" will accrue if stay is not granted. It will be for the appellant to satisfy the Court and for that tangible grounds shall be stated so as to satisfy Court of the substantial loss would be caused in not granting the stay order. Mere reference of the word of "substantial loss" will accrue, if stay is not granted, is not sufficient compliance of the duty cast on the applicant seeking stay of the execution decree without elaborate such ground or grounds."
9. ' In the light what has been discussed above the application is dismissed.