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Civil Petition for Special Leave to Appeal No. 26‑P of 1968, decided on 30th May 1968.

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, dated the 7th March 1968, in Regular Second Appeal No. 149 of 1967).

O. XLI, r. 6‑Stay of execution of decree pending appeal‑Execution stayed by appellate Court on condition that appellant either deposited decretal amount in Court or else furnished bank guarantee to satisfaction of executing Court‑Discretion, held, properly exercised by Court‑ Special Leave to Appeal refused by Supreme Court.

Akhtar Ali Sardar, Advocate Supreme Court instructed by Abdul Waheed Khan, Attorney for Petitioner.

Nemo for Respondent.

Date of hearing : 30th May 1968.

The petitioner seeks special leave to appeal from an order of a Division Bench of the High Court of West Pakistan at Lahore, directing the stay of execution of a decree during the pendency of a second appeal admitted for regular hearing under Order XLI, rule 12 of the Code of Civil Procedure, but subject to the condition that the petitioner, who is the appellant in the High Court, "shall deposit the decretal amount in the executing Court or furnish unconditional bank guarantee to the satisfaction of the executing Court within one month."

The petitioner seeks special leave to appeal only from this latter portion of the order and it is contended on her behalf that the High Court, in making this order, had not taken into account the fact that the decree in favour of the respondent was really in respect of a debt due from her deceased husband and she was only liable to the extent of the assets of the deceased in her hand, as also that all her immovable properties, valued at more than Rs. 50,000 were already under attachment under orders of the executing Court. In the circumstances there was no necessity at all for making the order. The learned Judges in the High Court had, therefore, according to the petitioner, not exercised. their discretion on sound judicial principles.

We are, however, unable to agree with this, for, it seems to us that the learned Judges of the High Court have, in fairness to the petitioner, only ordered her to deposit or furnish Bank guarantee for the decretal amount which is Rs. 10,208 only. It is thus clear that the order is just and fair. On the deposit of this amount or the furnishing of the guarantee the petitioner can get the attachment of her properties released as there would be no further need for this attachment to continue but until then the properties cannot be released without impairing the security of the decree‑holder. This should not present any serious difficulty to her in getting a bank guarantee if she really so desires.

We are not impressed by the argument that she will not be in a position to obtain a bank guarantee if the attachment is not removed. If the properties are really worth Rs. 50,000 the Banks will advance Rs. 10,208 and get the attachment removed. The High Court have said in its order that on the making of the deposit or the furnishing of the guarantee the attachment will be removed. This, however, is a matter with respect to which the High Court can still be moved for making a modification in its order to that extent. We feel certain that such an application, if made, will receive sympathetic consideration.

Her complaint that the order of the High Court is not in conformity with rule 6 of Order XLI of the Code of Civil Procedure is, however, without any substance. This rule has been followed for the execution of the decree has been stayed upon the condition that the decretal amount is deposited in Court or security is furnished to the satisfaction of the executing Court. In our opinion, therefore, the discretion has been properly exercised upon sound judicial principles by the High Court and we see no reason to interfere with such a discretionary order.

This petition is accordingly dismissed.

Leave refused.

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