1. This is an application made under Order XLI, Rule 5, Civil Procedure Code for stay of execution of money decree under appeal on the ground that the appeal preferred is most probably to succeed and if the execution of decree under appeal is not stayed during the pendency of the appeal, appellants shall be put to substantial loss. Respondents opposed the stay application contending that decree appealed against is a money decree and no substantial loss is likely to be caused to the appellants if it was executed uninterrupted by the stay order from the Appeal Court.
2. On different dates, Messrs Karim Aziz Industries supplied steel ingots for use in Messrs Raheem Steel Re-Rolling Mills Lahore owned by Ch. Abdul Majeed and two others and on account of these sales an amount of Rs.19,17,427.15 was due from the defendants to the plaintiffs on 17-6-1983. As the liability was not liquidated, plaintiffs sued the defendants for recovery of Rs.22,97,700 by filing a civil suit against them in the Court of Senior Civil Judge, Attock, on 23-2-1985. Ordinary modes employed for effecting service upon the defendants having failed, trial Court ordered that the defendants be served through citation in Daily Nawa-i-Waqt for 7-10-1985. On 7-10-1985, Mr. Haq Nawaz Khan, Advocate entered appearance on behalf of defendants and filed memo of appearance. On this date, suit was adjourned to 30-10-1985 for filing of written statement by the defendants. On the adjourned date, suit was again postponed to 12-11-1985 to enable the defendants to submit their defence. Adjournment was subjected to payment of Rs.50 as costs. On 12-11-1985 and 27-11-1985 also, case was adjourned for written statement by the defendants subject to payment of Rs.100 and Rs.150 as costs respectively. However, on 12-12-1985, the date to which the suit was eventually adjourned, none appeared on behalf of the defendants and the suit was ordered to. Proceed against them ex parte. On the strength of ex parte proof led in the case, suit was decreed ex parte on 31-7-1986 for an amount of Rs.22,97,700 with interest at 14$ per annum till its realization. On 20-12-1986, defendants applied for setting aside of an ex parte decree passed against them. Plaintiffs contested the application. On the pleas raised by the parties, trial Court settled three issues. These were:- (1)Whether the application is time-barred? OPR (2)Whether there are sufficient grounds to set aside the ex parte decree dated 31-7-1986? OPP (3)Relief.
3. Defendants-applicants did not produce evidence and requested for adjournment. Trial Court found that sufficient cause did not exist for allowing adjournment to them, closed their evidence and dismissed the application for setting aside of the ex parte decree. Against this decision an appeal (F.A.0. 23 of 1987) was filed in this Court. It was allowed by me on 23-1-1988 and the case was remanded to the trial Court for deciding of the application for setting aside of the ex parte decree afresh after allowing an opportunity to the defendants to adduce their evidence. When the matter went back to the trial Court, both parties led evidence for and against their respective versions. By order dated 26-6-1988, learned Senior Civil Judge has found against the defendants on the issues framed by him and dismissed the application. Again an appeal has been filed in this Court. It being first appeal was admitted to hearing on 31-8-1988 by Irshad Hasan Khan, J.
4. It is contended on behalf of the appellants that the conclusions reached in the order impugned in first appeal are not supported from the record and are also against the law. With reference to record, it was submitted that the defendants had no knowledge of the proceedings against them and appearance of Mr. Haq Nawaz Advocate on their behalf was totally unauthorised. It is urged that if execution of the money decree is not stayed during the pendency of the appeal, appellants shall suffer substantial loss. As against this, Mohammad Afzal Siddiqui learned counsel for the plaintiffs has argued that it being a money decree is not to be stayed and that the plea of substantial loss is without substance. Learned counsel also submitted that on merits money claim was supported by a writing EXh.P.l made by the defendants for clearing their liability and post- dated cheques Exhs.P.2, P.3 to P.6 issued by them. As to the appearance of Mr. Haq Nawaz Advocate, reference is made to memo of appearance dated 7-10-1985 filed by him in Court and Wakalatnama Exh.P.W.2/A which bears his signatures along with Chaudhry Mohammad Abdullah Advocate. It was argued that if Mr. Haq Nawaz had earlier appeared on his own without authority from the defendants; his services could not have been engaged subsequently. From this fact, Mr. Siddiqui inferred that the defendants were served, had clear knowledge of the proceedings against them but were trying to delay the decision of the case against them.
5. There is no practice 'that the Appeal Court in every case A whether there are particular circumstances or not must make an order) for stay of execution pending an appeal. Unless an irreparable loss would otherwise be caused, execution of the decree cannot and must not be stayed. The use of the word 'may' vests a discretion in the Court and it is idle to suggest that this discretion must always be exercised in favour of the appellant /appellants. Regard must always be had to the circumstances of each case. In the present case, there are strong indications on record to suggest that clearance of liability is being delayed. In ex parte proof, post-dated cheques issued by the defendants had been placed on record along with their another writing to support the outstanding debt. At the hearing, Mr. Naseem expressed his inability either to admit or to deny the genuineness of these documents. There is yet another circumstance also and that is that the plaintiffs proposed the decision of their case on a special oath either by the defendants or the plaintiffs. This course was also not accepted by the other side. It is an established rule of practice that ordinarily stay of money decrees will not be given unless there are special, circumstances which in the present case I do not find to exist. In these circumstances, I do not think that a case for stay of execution has been made out. Accordingly, C.M. Is dismissed.