1996SCMR 1105 (PLP)

MUKHTAR AHMAD JUNEJO, J.

Petitioner Muhammad Akram Zahid Chaudhry was defendant in summary Suit No.96/92 which was decreed by an Additional District Judge, Islamabad in favour of the respondent for recovery of Rs.5,00,000 from the petitioner. The judgment and the decree of the trial Court challenged in the Lahore High Court under R.F.A. No.14 of 1994. During the pendency-of the R.F.A. the High Court passed an order which reads as below:-- "The application is allowed subject to the petitioner depositing the decretal amount in the Executing Court within one month. In case, this amount is deposited the Executing Court shall invest the same in some profitable Scheme of the Federal Government with the concurrence of the parties. The entire amount shall be paid to the successful party. Hence this petition

2. Learned counsel, Mr. Muhammad Munir Peracha for the petitioner argued that since there is provision for furnishing of security under clause (c) of sub-rule (3) of Rule 5 of Order 41, Civil Procedure Code, hence the High Court should not have ordered deposit of decretal amount in the Execution Court.

3. As per Order 41, Rule 5 (1) of the-C.P.C. the Appellate Court may order for sufficient cause stay of execution of a decree. Sub-rule (3) of Rule 5, of Order 41 places certain restrictions upon power of the Court to order stay of execution. One of such restrictions is that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. The security can be by way of deposit in Court of cash or otherwise. It is pertinent to observe that in the instant case there is appeal preferred against a decree for payment of money. Hence unless the Appellate Court is of the opinion that prima facie the appeal is one which must succeed owing to an error apparent on the face of the record, the petitioner cannot maintain the same in the High Court without depositing the decretal amount or furnishing security for its payment, as provided by the proviso below Rule 8 of Order 41, C.P.C. Hence the provisions contained in clause (c) sub-rule (3) of Rule 5 of Order 41, C.P.C, have to be read with the provisions contained in clause (a) of the proviso below Rule 8 of Order 41, C.P.C. Reading of the provisions contained in clause (c) of sub-rule (3) of Rule 5 of Order 41, C.P.C. with the provisions contained in clause (a) of the proviso below Rule 8 of Order 41, C.P.C. would show that it is discretionary for the Execution Court staying execution of a decree for the recovery of money, to order deposit of decretal amount in the Execution Court or to order furnishing of security. Such discretion has been validly exercised in the instant case and no case is made out for interference. Consequently this petition stands dismissed. A.A./M.2241/S??????????????????????????????????????????????????????????? Leave refused.