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Civil Miscellaneous Appeal No. 110 of 1974, heard on 29th March, 1978.

O. XLI, r. 5-Stay by appellate Court-Stay allowed on Advocate's undertaking to pay interest on usual rate from date of decree of original Court--Contention that order granting interest on decretal amount was not passed and condition imposed by Court while granting stay was only a consideration which induced Court to pass that order and as such interest was not payable-Held, had no force.

Appeal No. 32 of 1969 rel.

Usman Ghani Rashid, Addl. A.-G. for Appellant.

Sadig Ali Khoja for Respondents.

Dates of hearing : 27th and 29th March, 1978.

This Miscellaneous Appeal is directed against the order dated 21-8-1974 passed by learned 1st Senior Civil Judge, Hyderabad in the execution application. Filed the respondents legal heirs oh Mir Malik Muhammad Khan Talpur wherein they claimed interest on the decretal amount for the period beginning with the date of the decree until the satisfaction of the decree.

The undisputed facts giving rise to this Micellaneous Appeal are that an accident occurred on 5-4-1953 on the Railway Level Crossing of Tando Thoro village, in the course of which one Min Malik Muhammad Khan Talpur lost his life. His legal heirs, the respondents herein thereupon filed a Suit No. 32/1952 in the Court of 1st Senior Civil Judge Hvderabad claiming Rs. 10 lacs as damages. The trial Court decreed the suit for Rs. 5 lacs only. The appellant filed appeal in this Court against the decree and also made an application for stay of execution an of the decree passed by the trial Court which was granted by the learned Single Judge on 5-3-1962 as under:-

"Stay allowed as the appellant advocate undertakes to pay interest on usual rate on the amount that he may have to pay ultimately from the date of decree of the original Court."

Ultimately, the appeal was dismissed by the learned Single Judge by his judgment dated 17-1-1966 but he modified the decree to one for Rs. 1,50,000 only, with costs. The appellant judgment-debtor paid the dectetal amount to the respondents decree-holders but contested their liability to pay interest claimed by the respondents-decree-holders on the strength of the above reproduced order dated 5-3-1962 passed by the Court while granting the application under Order XLI, rule 5, C. P. C. Subsequently, respondents decree holders filed an execution application for payment of the interest in terms of the above said order. The learned counsel appearing for the appellants before the executing Court did not oppose the execution application in: view of the judgment passed in lsc Appeal No. 32/1969, wherein the late Chief Justice (Mr. Tufail Ali Abdul Rehman) while interpreting an identical order of stay passed by the learned Single Judge in another identical case, had held that interest was so payable by the judgment-debtor, and the execution application was allowed by the learned Senior Civil Judge by his order dated 21-8-1974.

It is against this order that the present miscellaneous appeal has been filed. Mr. Usman Ghani Rashid, learned counsel for appellant, did not dispute dated 5-3-1962 passed by the Court while granting stay the execution of the decree of the trial Court was executable. He, contended that there was no order granting interest on the decretal amount and the condition imposed by the Court granting the stay was only a consideration which induced the Court to, pass that order and therefore he interest was not payable by the appellant. judgment-debtor.

I see no force in the comer This very contention disputing the liability to pay interest was raised by the same learned counsel in appeal No. 32 of 1969 referred to above, where in also an identical order was 4t passed by the Court while granting stay of execution of the decree passed by the trial Court in respect of another person injured in the same indent, but the contention was repelled by the late Chief Justice Tufail Ali Abdul Rehman as under :-

"While on the one hand the appellant argues that this is, therefore, a part of the order and is indeed the condition upon which stay was allowed, the learned Assistant Advocate-General states that it is merely a consideration which induced the learned Judge to pass the order.

It seems to me that the learned Assistant. Advocate-General's --argument proceeds too much upon the mere of the order and does not take into account its real substance. The Code of Civil Procedure is a law which, as its name itself makes plain, deals with procedure and purpose of procedural law is to facilitate and regulate the obtaining of the rights of "the parties and enforcing the obligations of other parties. Clearly the learned Judge of this Court who passed this order, namely, the late Mr. Justice Kharal, was granting the stay upon the condition that interest would be paid; if he had used some such language as this "stay allowed on condition that interest would be paid" obviously the learned Assistant Advocate-General would have been without an argument. But different Judges express themselves differently and I cannot read this order except as meaning that it is on this condition that stay is allowed.

If the stay had not been allowed then of course the appellant would , have taken immediate steps to have the decree executed and it is the normal practice of this Court not to stay execution of money decree and, presumably in this case, it was stayed partly because the defendant was the Government and upon the condition that they would pay interest. 1, therefore, really see no substance in the argument of the learned Assistant Advocate-General and 1 am entirely persuaded that this is an order. Upon the footing that it is an order containing the condition which 1 have stated the learned Assistant Advocate-General has conceded that it can be executed. It was never his contention that an order as such cannot be executed but only that there was no such order as the appellant in this case claim.

The learned Assistant Advocate-General indeed placed his argument n another fashion also. He stated that the plaintiff/appellant may together remedies but cannot asked for an execution of this order since the order as such was only in favour of the defendant. When I asked him, however, what other remedies the plaintiff could have, be suggested a suit but this clearly is not so. The undertaking that was given, was given by the appellant in the former appeal to the Court and a suit based on this could, if instituted against the defendant be met by the answer that there was no privity of contract between the plaintiff and defendant. Indeed the learned Assistant Advocate General did agree that would p )bal y be the defence taken up and would probable succeed.

In the circumstances, therefore, I am perfectly cleat in my mind that the order in question was one which must be read as including a condition that the defendant pay the interest on the amount for the period beginning with the date of the decree until the satisfaction of the donee."

I fully agree with the view taken above by the late Chief Justice, and, indeed, Mr. ilsman Ghani found himself unable to assail the correctness of the said view and. could not advance an argument or point out any case law to the contrary, to persuade me to take a different view. It may be further added that even in the Court below, the execution application was not opposed by the learned counsel appearing for the appellants.

For the aforesaid reasons, I see no merit in this appeal and dismiss it. I however, make no order as to costs, as the learned counsel for the respon dent has not appeared today.

M. A, K. Appeal dismissed.

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