P L D 1994 Karachi 311 (PLP)

This application by the decree‑holder, praying that the property bearing Survey No. 98, sheet RB‑6 (Old Survey No. 40, Sheet B‑6), situated in Rambagh Quarters, Karachi, belonging to the surety, be sold in execution of the decree, has been made in the following circumstances. The judgment‑debtor had filed H.CA. No.107 of 1990 challenging the judgment and decree passed against him in Suit No.437 of 1985; and had applied therein for an order to stay the operation of the decree. The operation of the decree was stayed subject to security being furnished for the amount of the decree plus costs of the appeal. Such security was furnished by the surety and the operation of the decree was stayed. H.C.A. No.107 of 1990 was subsequently dismissed and the appeal to the Supreme Court also failed. The surety bond executed by the surety is in the following terms: "Whereas the Hon'ble Court vide order dated 3‑9‑1990 read with order dated 29‑10‑1990, the operation of the decree stayed subject to furnishing security to the extent of the decretal amount plus cost of appeal within two weeks from today." And whereas Hon'ble Court vide order dated 10‑10‑1991 has, by consent, directed the parties to appear before the Nazir on 27‑10‑1991 at 10-30 a.m. Now, therefore, 1, Mst. Zehra Bai wife of Mulla Abde Ali Bhai, Muslim, adult, resident of 324, Block‑C, Barkat‑e‑Hyderi, North Nazimabad, Karachi do hereby stand surety for the appellant in the sum of Rs.8,55,000 (rupees eight lacs fifty‑five thousand only) by tendering my property mentioned in the schedule hereunder and do bind myself, my heirs, executors and administrators not to dispose of the said property during pendency of the case and further bind myself that the appellant shall obey each and every order of the Court or in default of his so doing, I hereby bind myself, my heirs, executors, and administrators to pay the sum of Rs.8,55,000 (Rupees eight lacs fifty five thousand only) to the Court or otherwise the Court shall be competent to realise the requisite amount from the property tendered by way of security. To the effect, I execute this surety bond at Karachi, the 27th day of October, 1991. SCHEDULE OF PROPERTY Four storeyed building constructed on Survey No. 98, Survey Sheet RB‑6, situated at Frere Road, Karachi. (Sd.) Zehra Bai Surety." Mr. SA. Samad Khan submits that the property of the surety cannot be sold because the security was furnished in H.CA. No.107 of 1990 and that the order of stay of the operation of the decree for which the security was furnished stood vacated upon the appeal being finally decided. He relies on the cases reported in AIR 1942 Oudh 80, AIR 1978 H.P. 28, AIR 1939 Nagpur 107 and PLD 1962 Karachi 368 to contend that upon the disposal of H.CA. No.107 of 1990 the order staying the operation of the decree stood vacated. The operation of the decree was obviously stayed pending the hearing and disposal of the appeal. There is, therefore, no cavil with the proposition that the stay came to an end when the appeal was heard and disposed of; but it does not follow that the obligation of the surety also came to an end when the appeal was disposed of. In fact, the object of obtaining the security was to ensure that in the event of the appeal being dismissed the decree passed in the suit would be obeyed and performed. This is evident from the provisions of Order 41, Rule 5, C.P.C. which provides as follows:‑‑ "

5. Stay by appellate Court.‑‑(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the appellate Court may for sufficient cause order stay of execution of such decree. (2) Stay by Court which passed the decree.‑‑Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed. (3) , No order for stay of execution shall be made under sub‑rule (1) or sub‑rule (2) unless the Court making it is satisfied‑‑ (a) that substantial loss may result to the party applying for stay of execution unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. (4) Notwithstanding anything contained in sub‑rule (3), the Court may make an ex parte order for stay of execution pending the hearing of the application." Sub‑rule (1) of Rule 5 of Order 41 provides for stay of execution of decree by appellate Court while sub‑rule (2) provides for such stay by the Court which passed the decree and sub‑rule (3) of Rule 5 provides that no order for stay of execution shall be made under sub‑rule (1) or sub‑rule (2) unless the Court making it is satisfied that security has been given "for due performance of such decree or order as may ultimately be binding" on the applicant. When an appeal is filed, the decree or order appealed from may either be set aside or maintained or modified and the decree or order, unless it is set aside, which ultimately binds the judgment‑debtor or the applicant is either the decree or order which was passed by the original Court or, as the case may be, such decree or order as modified by the appellate Court; and it is such decree the performance of which is intended to be ensured by the security. Further, the surety is liable to have the decree executed against her in terms of section 145, C.P.C. which provides, in relevant parts‑‑ "Where any person has become liable as surety‑‑ (a) for the performance of any decree or any part thereof; (b) . ............................................... (c). , the decree ...................... may be executed against him, to the extent to which he has rendered himself personally liable " Finally, the surety has bound herself, by the surety bond, "that the appellant shall obey each and every order of the Court" and, in default, to pay the Court Rs.8,55,000 failing which the Court is competent to realise the requisite amount from her property given as security. The intention of the bond was quite clear that the judgment‑debtor shall obey and perform the C decree which was appealed from either as passed by the trial Court or as modified by the appellate Court. The decree, in the event, has been upheld and the judgment‑debtor has admittedly failed to perform it. The surety, therefore, is liable to have her property sold for realisation of Rs. 8,55,

000. In the circumstances, the application is granted AA./K‑357/x. Application accepted