1969 PLP 57 (SCMR)

Nemo for Respondent. Date of hearing : 29th November 1968. HAMOODUR RAHMAN, C. J.‑This is a petition for special leave to appeal from a decision of a Division Bench of the High Court of West Pakistan at Karachi in an appeal from the judgment of a learned Single Judge of the same High Court. The present petitioner who is a dealer in marbles had a cash credit account with the respondent‑Bank which was secured by the pledge of certain quantities of the petitioner's stock in trade. The respondent, however, on discovering that the valuation of the said stock as given by the petitioner, was false and fictitious, filed a suit for the recovery of a sum of Rs. 95,860 from the petitioner under the provisions of Order XXXVII of the Code of Civil Procedure. The suit was, after contest, decreed against the petitioner and an appeal there from was dismissed in limine. Thereafter, the respondent in execution of his decree, attached under Order XXI, rule 43, C. P. C. the pledged stock of marbles lying with it. The petitioner then filed another suit against the respondent for the recovery of the stock of marble pledged or in the alter native, for payment of a sum of Rs. 1,25,697 as the value of the said stock. Along with this suit he also filed an application: for an injunction for restraining tree respondent from proceeding with the execution. The trial Court granted an injunction restraining the respondent from taking any further steps in execution till the decision of the suit filed by the petitioner. In appeal under tile Letters Patent, however, a Division Bench, after fully considering the points urged before it, allowed the appeal and vacated the injunction. The petitioner now seeks special leave to appeal and the only argument that has been advanced on his behalf is that the learned Judges of the Letters Patent Bench were wrong in holding that even for obtaining a stay of execution of a previous decree under Order XXI, rule 29, C. P. C., a prima facie case has to be made out as in the case of an injunction under Order XXXIX, rule 1, C. P. C. Learned counsel, appearing in support of the petition, contends that the purpose of the stay under Order XXI, rule 29 is merely prevention of multiplicity of proceedings and the principles which govern the grant of an injunction under Order XXXIX, rule 1 do not apply to such a case. The point raised appears, in our view, to be a point of law which has not yet come up for consideration before this‑Court. We would accordingly, grant leave but since rule 29 of Order XXI itself provides that the stay can be made on terms, we propose to make the following order Leave is granted to the petitioner for the examination of the question whether the principles which govern the grant of and injunction under order XXXIX, rule I also apply to the stay of execution under the provisions of Order XXI, rule 29 subject to the condition that the petitioner will, within two months, deposit in cash, with the Additional Registrar, Karachi Bench, the full decretal amount of the respondent's decree in Suit No. 250 of 1967, together with the costs assessed there. The execution of the decree will also be stayed during the pendency of the appeal in this Court, but in default of the deposit of the decretal dues above mentioned within the prescribed time, both the stay order and the leave will stand rescinded and the execution will proceed without any further reference to this Court. Leave granted.