Messrs ALLIED BANK OF PAKISTAN LTD. vs Messrs SUPER ELECTRIC INDUSTRIES
This petition for leave to appeal arises from an order of the Lahore High Court dismissing an application to vacate an order suspending the execution of a money decree passed in a recovery suit. The petitioner Bank challenged the High Court's continuation of the stay of execution pending a Regular First Appeal. The core legal question considered by the Supreme Court was whether a stay order passed by an appellate court during the pendency of an appeal is governed by the time limitations prescribed under Order XXXIX, Rule 4-A of the Code of Civil Procedure 1908 applicable to suits, or by Order XLI, Rule 5 of the Code of Civil Procedure 1908 applicable to appeals. Granting leave to appeal, the Supreme Court held that an interim stay order passed in exercise of appellate jurisdiction under Order XLI, Rule 5 is not restricted in its duration by the provisions of Order XXXIX, Rule 4-A. The key principle laid down is that stay orders granted under Order XLI, Rule 5 of the Code of Civil Procedure 1908 do not carry the six-month statutory lifespan restriction applicable to temporary injunctions governed by Order XXXIX.
- Whether an order staying execution of a decree passed by an appellate court under Order XLI, Rule 5 of the Code of Civil Procedure 1908 is subject to the time restriction imposed by Order XXXIX, Rule 4-A?
- Does Order XLI, Rule 5 of the Code of Civil Procedure 1908 restrict the span of validity of a stay order granted in appellate proceedings?
- Order XXXIX Rule 4-A, Code of Civil Procedure 1908
- Order XLI Rule 5, Code of Civil Procedure 1908
ORDER
ALI HUSSAIN QAZILBASH, J.--This is a petition for leave to appeal against the order of the Lahore High Court, dated 27-10-1986.
2. The brief facts are that the petitioner/Bank filed suit for recovery of a certain amount against the respondent before the Banking Judge of the Lahore High Court on its original jurisdiction. The suit was contested but ultimately a decree for the recovery of a sum of Rs.20,12,693.90 together with interest at the rate of 14% per annum from the date of institution of the suit till the realization of the decretal amount was passed on 7th November, 1984. The respondent filed a Regular First Appeal in the Lahore High Court from the judgment and decree dated 7-11-1984. Along with the appeal, the respondent also filed an application under Order XLI, rule 5 C.P.C. For the suspension of the impugned decree.
On 2-7-1985, the learned Division Bench issued notice to the petitioner/ Bank and ordered the suspension of the execution of the decree subject to the furnishing of the security in respect of the decretal amount to the satisfaction of the executing Court. The case then came up before the Court on 6-10-1985 and on that date the order dated 2-7-1985 was confirmed. The petitioner then approached the High Court with a civil miscellaneous application for the vacation of the order of suspension. This application was dismissed on 27-10-1986, hence the present petition.
3. We have heard the learned counsel for the parties. While dealing with the question of grant of stay, the learned Judges have observed: "The argument of the learned counsel for the respondent, based on the provisions of Order XXXIX, rule 4-A of the Code of Civil Procedure, that the order of this Court staying proceedings could enure only for six months is simply fallacious because the order was passed by this Court in appeal under Order XLI, rule 5 of the Code and not in a suit under Order XXXIX, rule 4-A. Order XLI, rule 5, which applies to appellate jurisdiction, does not restrict the span of the validity of the stay order."
The only question which requires consideration in this case is whether the impugned order of the High Court would be governed by the provision of Order XLI, rule 5 or Order XXXIX, Rule 4-A, C.P.C.I
4. The arguments advanced by the learned counsel for the petitioner and the learned Advocate- General in support of the petition were of no assistance to us, but since a legal question of general importance has been raised, we grant leave in the matter. Security Rs.2,000. Since the point involved is a short one, an early date be fixed for hearing of the appeal on the present record with permission to the parties to file additional documents if any.