1995 PLP 708 (SCMR)

ABDUL SHAKURUL SALAM, J.‑‑‑The petitioner seeks leave to appeal against an order of the learned Judge of the Lahore High Court dated 28‑9‑1991.

1. Relevant facts are that the petitioner filed an application under section 20 of the Arbitration Act, 1940. An Arbitrator was appointed who gave an award on 22‑1‑1990, in favour of the petitioner for a sum of Rs.7,73,047.00. The award was filed in Court. The respondents filed objection petition. After the trial, the learned Civil Judge, Ist Class, Lahore, made the award rule of the Court vide order dated 5‑3‑1991. The respondents filed an appeal in the Lahore High Court and asked for suspension of the execution of the order of the learned trial Court during the pendency of the appeal. A learned Judge granted the same vide order dated 9‑6‑1991 and confirmed it on 28‑9‑1991. The petitioner seeks leave to appeal. Learned counsel for the petitioner submitted that under Order XLI, R.5(3), C.P.C. no order of stay of execution shall be made 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". It is contended that no substantial loss will result to the respondents if they were to make the payment to the petitioner. On the other hand, it is the petitioner who would obviously suffer substantial loss if the amount found due to the petitioner is withheld from him. He placed reliance on "Messrs Bundial Bus Service v. Mst. Sanjeeda Afzat and others" (1975 SCMR 203) and "Sadiq Sayeed Khan and another v. Central Government through Secretary, Defence and Military Estate Officer, Abbottabad and others" (1986 SCMR 1147 (1). In the former case the High Court declined to grant stay to the judgment‑debtor depriving the decree holders of the fruit of the decree. However, it directed that the decretal amount, if deposited in Court, shall not be paid to the decree‑holders, unless sufficient security for reimbursement is furnished by them". This Court observed that "we find that High Court has exercised its discretion on sound principles of law governing execution of money decree pending their challenge on appeal. Decree‑holders lost their bread‑winner long ago, on 31st January, 1968 and it is only proper that they should reap fruits of the decree passed in their favour, rather than just have a "paper decree" to console themselves for the time being. The interest of the. petitioners have also been adequately safe guarded in the eventuality of their success in appeal in the High Court". The petition of the judgment‑debtors was accordingly dismissed. In the second case the petition was converted in to appeal and allowed in terms that the execution shall not be stayed; but if the first respondent deposits the disputed amount amounting to Rs.10,00,000, in the executing Court within three months, the execution shall stand suspended. The petitioners shall be at liberty to withdraw the amount so deposited in the Court provided they furnish a bank guarantee in the like amount within three weeks of the date of deposit of the said amount". In view of the above, we convert this petition into appeal and allow and further direct that the execution of the order of the learned trial Court is not suspended; but if the respondents deposit the amount awarded by the Arbitrator and made rule of the Court within three months from today, the appellant shall be entitled to withdraw the amount on furnishing of security for refund if the respondents' appeal ultimately succeeds, to the satisfaction of the learned trial Court. AA./S‑842/S Appeal allowed.