1991 PLP 2319 (SCMR)

MUHAMMAD AFZAL LONE, J.‑‑‑The facts in brief are that the appellant‑Bank filed a suit against the respondent under the Banking Companies (Recovery of Loans) Ordinance, 1979, in the Lahore High Court, exercising original civil jurisdiction, for recovery of Rs.22,21,200.90 alongwith interest. The suit was decreed on 7‑11‑1984 for a sum of Rs.20,12,693 together with interest at the rate of 14% per annum with quarterly rests from the date of institution of the suit till realization of the decretal amount. The respondent challenged the judgment and decree through an appeal under section 12 of the Ordinance and along therewith moved an application for suspension of the execution of the decree, during pendency of the appeal. The learned Appellate Bench of the High Court by order dated 2‑7‑1985 issued notice to the appellant and subject to furnishing of security by the respondent, in respect of the decretal amount, suspended the execution of the decree under appeal. This order was confirmed on 6‑10‑1985, after hearing the appellant.

2. The appellant, thereafter, applied to the High Court for vacation of the order suspending the execution of the decree on the plea that in view of the provisions of Order XXXIX, Rule 4‑A, C.P.C. it ceased to have effect after expiry of a period of six months. This application was rejected in limine vide order dated 27‑10‑1986, which is under challenge before us, and in so far as relevant for the purpose of this appeal, is reproduced below:‑‑

"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 execution 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."

3. Leave to appeal was granted to examine the issue, whether the High Court's order suspending the execution of the decree is governed by the provisions of Order XL1, Rule 5 or Order XXXIX, Rule 4‑A, C.P.C.

6. The case of the appellant is that the appeal is continuation of original proceedings and the Appellate Court is vested with the same powers to make any order which the trial Court can pass and as the trial Court under Order XXXIX, Rule 4‑A, C.P.C., can pass an order staying the realization of public money for a period of six months only, the stay order issued by the Appellate Court is not effective after the expiry of this time limit.

7. Section 12 of the Ordinance provides right of appeal to the aggrieved party, but there is no express provision therein or in the Ordinance to stay the execution of the decree. While hearing an appeal it is open to the Appellate Bench to set aside the decree assailed therein, either in its entirety or partially, as the circumstances of the case may demand; provided the case falls within the mischief of grounds mentioned in section

12. The power to suspend the execution of the decree is ancillary and incidental to the power to grant main relief and allow the appeal. The grant of stay order by the Appellate Bench is not governed by Order XXXIX, Rule 4‑A, but covered by the ancillary powers of the Court.

8. It is significant that section 6 of the Ordinance confers powers vested in a' Civil Court, under the Code of Civil Procedure, only on the Special Court and is silent so far as the Appellate Court is concerned. The argument advanced by the learned counsel for the appellant in an effort to extend the limitation imposed under Order XXXIX, Rule 4‑A, C.P.C., on certain injunctions issued by the Civil Court, to the orders rendered by the Appellate Court, suspending the execution of the decree, pending the decision of the appeal, is too broad to be accepted. A temporary injunction granted under Order XXXIX, cannot be equated with the order passed by the Appellate Court staying execution of the decree. The impugned order is upheld, but on the basis of different reasoning. This appeal is, therefore, dismissed, leaving the parties to bear their own costs. M.BA./A‑885/S Appeal dismissed.