1983 PLP 643 (SCMR)

MUHAMMAD AKRAM, J.‑On the 19th November,1966 the petitioners entered Pinto an agreement to sell their house situated in Gulberg in favour of the respondents for Rs. 90

000. But afterwards on the 1st May, 1967, the parties entered into another agreement rescinding the agreement for the sale of the house to the respondent and it was inter alia agreed that the petitioners shall refund a total sum of Rs. 33,986 in all to the respondent by the 1st January, 1973. In this connection it was expressly stipulated between the parties that if the respondent started any proceedings (qanooni kaarawai, chara joi) against the petitioners then the unpaid amount due to him shall be forfeited. It appears that on the 14th July, 1969, the respondent reported against petitioner No. 1 herein, who was working as an Assistant Engineer in Irrigation Branch, P. W. D. Secretariat at Lahore, to the Martial Law Administrator, Zone `A', Lahore to the effect that he was living beyond his means. In paragraph 2 of the application he also mentioned, that he was indebted to the sum of Rs. 30,

406. Exh. D‑1 purports to be a letter dated 16th July, 1969 from the Headquarter Deputy Sub‑Administrator Martial Law Sub‑sector `A', Lahore addressed to the Chief Engineer, Irri gation, Lahore, forwarding a copy of the application made by the respon dent and the petitioner was advised to clear the debt. But eventually on the 4th September, 1969 (Exh. D‑1/b), the respondent was informed that the allegations made by him against respondent No. 1 were found to be incorrect and that no further action on the application was necessary. In this background, on the 16th July, 1971, the respondent brought a suit against the two petitioners for recovery of the outstanding amount of Rs. 29,986 in all due to him under the above‑mentioned second agreement dated 1st May, 1966. But the suit of the plaintiff was dismissed by the Civil Judge at Lahore on the 29th January, 1975. In his opinion he had forfeited his right to recover the amount from the petitioners in terms of the stipulation contained in their agreement because of the complaint made by him to the Martial Law Authorities and the proceedings taken in pursuance thereof. But the finding was reversed on appeal accepted by a learned Judge of the Lahore High Court at Lahore on the 19th January, 1976, who decreed the suit of the plaintiff for recovery of Rs. 29,

986. In these circumstances the two petitioners have filed this petition for special leave to appeal from the order of the High Court. Before us the learned counsel for the petitioners has argued that the High Court was not justified in refusing to invoke the stipulation in favour of the petitioners and to relieve him of its legal consequences. A question as to the true interpre tation and effect of this stipulation in the second agreement has been raised before us. We, therefore, Grant leave to the petitioners to appeal from the impugned judgment and decree passed by the High Court. Security in the sum of Rs. 2,

500. The respondent has obtained a money‑decree against the petitioners, for recovery of Rs. 29,986 passed by the High Court. The petitioners have pressed for the stay of the execution of the decree pending the disposal of this appeal. We are of the opinion that the petitioners are not likely to suffer any irreparable loss or injury in case he is made to pay the decretal amount to the decree‑holder. Their interest can be fully safeguarded by obtaining a suitable guarantee for the restitution of the amount in case they ultimately turned out to be successful in this appeal. In Dhunjibhoy Cowasii Umrigar v. Lisboa (I L R 13 Bom. 241). It was held that a party appealing against a decree, which directs him to pay money, may obtain stay of execution of the decree, so far as it directs payment, on his lodging the amount in Court, unless the other party gives security for the repayment of the money in the event of the decree being reversed. If such security be given by the successful party, then stay of execution should not be granted. We have, therefore, declined to order the stay of the execution proceedings against the petitioners. However, at the same time, we direct that the decretal amount, if realised, will be paid to the respondent only after he has furnished security to the satisfaction of the execution Court for the restitution of the amount to the petitioners in the event of their success in this appeal. Leave granted.