P L D 1961 (W (PLP)

Date of hearing : 21st February 1961. S. A. MAHMOOD, J.‑The Rehmania Taxtile Mills Ltd., Lyallpur, filed a suit for rendition of accounts against Sh. Maula Bakh h and Company and Messrs Zafar Saleem and Brothers Ltd. in the Court of a Civil Judge at Lyallpur. Toe Court passed a preliminary decree for rendition of accounts in favour of the plaintiff and against the defendants with costs. Ch. Mukhtar Ahmad Anwar, Advocate, was appointed as a local Commissioner to go into the accounts of the parties and to report what amount, if any, was due to the plaintiff from the defendants. Messrs Zafar Saleem & Brothers Ltd. appealed against the preliminary decree, and also moved an application under Order XLI, rule 5(1) Civil Procedure Code, for stay of its execution. The said application came up before A. R. Changez, J. on the 14th of April 1960. Notice was issued to the respondents in the application and ad interim stay was ordered. Messrs Rehmania Textile Mills Ltd., Lyallpur, moved an application (Civil Miscellaneous No. 288/C of 1960) for vacating the stay order. This application came up before Muhammad Shafi, J. and a notice of this application was ordered to issue to the other side. The stay matter came .up finally before A. R. Changez, J., and he held that there was not sufficient ground for staying execution as the appellant did not stand to lose substantially if the Commissioner, appointed under the preliminary decree, went through the accounts as only two or three items were involved, and examina tion of the books was not likely to be either protracted or ex pensive. The learned Single Judge vacated the interim stay order, but directed at the same time that no final decree shall be passed until the disposal of the appeal. Against this order Messrs Zafar Saleem & Brothers Ltd., have filed an appeal under clause 10 of the Letters Patent to this Court.

2. Learned counsel for the appellant argues that there is no case at all for a preliminary decree to be passed and that the suit should have been dismissed. This relates to the merits of the case and we are not disposed to go into the merits at this stage. The sole question to be determined in this case is whether the discretion exercised by the learned Single Judge in refusing to grant stay of the operation of the preliminary decree should be interfered with on the ground that substantial or irreparable loss is likely to result to the appellant. Learned counsel for the appellant argues that the appellant is bound to suffer loss of business and reputation if the local Commissioner goes through the accounts and that the principle of law is that ordinarily execution of preliminary decrees should be stayed. He relies on The Firm Badri Das Janakidas of Delhi v. Mathanmal and others (A I R 1922 Lah. 185) and Karam Elahi and another v. Mst. Amir.un‑Nisa and others (31 P L R 268). The first is a case in which a learned Single Judge of the Lahore High Court rejected an application for staying the execution of a preliminary decree passed against the defendants, in a suit for dissolution; of partnership and accounts, and in a Letters Patent Appeal against the order, Shadi Lal and Abdul Qadir, JJ. held that there were circumstances in the case which went to show that the appellant stood to lose substantially if the preliminary decree was executed and was allowed to develop into a final decree, before the appeal from the preliminary decree was adjudicated upon and one obvious loss was that the appeal which was pending would become useless. It was also observed that another probable loss was that the business of the firm would be seriously disturbed by their account books passing into the hands of the receiver and that the process was likely to be a protracted and expensive one, and in such a case the balance of convenience lay in favour of staying the execution rather than allowing it to proceed. The appeal was, therefore, accepted and the stay of the proceedings until the decision of the appeal from the preliminary decree was ordered. It was held at the same time in this judgment that it was a sound proposition that the learned Judge in Chambers having exercised a discretion vested in him by law in favour of the respondents, his order should not be disturbed unless there was anything to show that it was without jurisdiction or was passed with material irregularity or that there was any adequate proof that some loss would be occasioned by it to the appellant, which could be called substantial. The case is distinguishable from the present case as in the view of the learned Single Judge as well as in our view no substantial loss is likely to result to the appellant if the few items of transaction are gone through in the accounts books of the appellant and this process is not likely to be either expensive or prolonged and their books of accounts are not to pass into the hands of the local Commissioner. In the second case relied upon, Zafar Ali, J. held that when a preliminary decree was appealed against, further proceed ings in the trial Court should generally be stayed during the pendency of appeal and reliance was placed on Rup Narain v. Shibbu Mal (107 I C 486) and Chhote Lal v: Sultan Singh (29 P L R 262). With all respects to the learned Single Judge, we are of the opinion that the proposition is too broadly stated. It has to be considered on the facts and circumstances of each case whether substantial loss is likely to result to a party if further proceedings in the trial Court are not stayed when a preliminary decree has been passed. It has to be seen whether the conditions mentioned in Order XLI, rule 5, Civil Procedure Code, are fulfilled or not. This was the proposition laid down by Addison, J. in Banwari Lal v. Nanak Chand and another (A I R 1933 Lah. 724). Abdul Rashid, J. held in Chajjumal and others v. Multan Singh and others (A I R 1935 Lah. 140) that tinder Order XLI, rule 5, C. P. C., no order of stay of execution during the pendency of an appeal could, be made unless the Court was satisfied that substantial loss might result to the applicant, and again in Mst. Hayat Begum v. Abdul Karim (A I R 1934 Lah. 184) that in the absence of any evidence that the proceedings in the lower Court would be of protracted nature or that their continuance would cause any substantial loss, it was unnecessary to stay all further proceedings in the lower Court in pursuance of a preliminary partition decree and that if the passing of the final decree was likely to cause some loss to the petitioner by obliging her to file another appeal from the final decree, the proceedings in the lower Court should continue, until the stage of the passing of the final decree was reached, and that no final decree should be passed if the peti tioner gave adequate security for the income of the property.

3. Having considered the facts and circumstances of the case, we do not think that any substantial loss is likely to result to the appellant if the accounts are examined by the local Commissioner appointed by the trial Court in relation to the few items involved. There is neither likely to be considerable expenses nor protracted examination of the books, which will not pass on to the hands of the local Commissioner. The appellants will not be deprived of their books of accounts. There will be a considerable advantage in having the accounts gone into now and considerable delay in the disposal of the case would be avoided, if accounts are gone into and objections, if any invited, and settled, in case the preliminary decree is confirmed on appeal, and no substantial loss shall have accrued to the appellant, even if he succeeds in his appeal. The balance of convenience, therefore, lies in maintaining the order of the learned Single Judge. We, therefore, uphold the order, which has directed that no final decree shall be passed pending the disposal of the appeal by the High Court.

4. We, therefore, find no force in the appeal which is dismissed with costs. A. H. Appeal dismissed.