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High Court Appeal No.39 of 1983, decided on 19th March, 1984.

‑‑‑O. XLI, r.5‑‑Stay of execution by appellate Court‑‑Trial Court decreeing respondent's suit for possession of factory and allowing 60 days to enable appellants to file appeal and obtain stay order‑‑Held, suit having been decreed in favour of respondents, there was no reason to deprive them of fruit of decree‑‑Appellants if in future time could show that profits earned by respondents from factory were disproportionate compared to what were earned by Nazir of the Court during pendency of suit, respondents, held, could be deprived of possession‑‑Respondents were further directed to submit fortnightly accounts of factory to Nazir.

Khalid M. Ishaq for Appellants. Ali Aimed Fazeel for Respondents.

‑‑ The dipute in the case was in regard to a running salt factory. In this the case of the respondents/plaintiffs was that the factory in question had been purchased for the benefit of Alvia Tabligh Trust which was a registered body. It was the case of the respondents/plaintiffs that the money for purchase was also contributed by the said trust. No doubt the transaction pf purchase was through appellant No.1 but the case of the plaintiffs was that he had worked in no higher capacity than as a broker. To that extent Exh. 15/1 and Exh. 15/2 placed on the record before the learned Single Judge trying the suit would seem to point out that prima facie the dominant interest in the factory was of the respondents/plaintiffs. The necessity arose for filing a suit because dispute had arisen not only in regard to management of the factory but also on account of appellant No.1 raising a title to the factory adverse to the trust. It was in these circumstances that respon dents/plaintiffs filed the suit seeking declaration in regard to title, a decree for possession and accounts. The learned Single Judge has decreed the suit by an elaborate judgment, which has considered the rival claims of the parties. The reliefs claimed were granted in favour of the respondents/plaintiffs but as far as the decree for possession is concerned the learned Single Judge had allowed 60 days time to the appellant/defendants to enable them to five an appeal and obtain stay order.

We are now dealing with the stay application.

Without doubt the suit has been decreed in favour of the respondents plaintiffs and the appeal is yet to be heard. There appears to be no reason for depriving the respondents/plaintiffs of the fruit of decree. However Mr. Khalid M. Ishaque alluded to us a circumstance that another salt factory which was being run by the plaintiffs/respondents was running at a loss. Even if such an allegation is believed still it would be no criterion to come to a conclusion, that even this factory, if run by the respondents/plaintiffs would run at a loss; particularly because it is common case between the parties that during the period this factory haul been run by the Nazir of this Court a substantial profit of nearly 3 million rupees has accrued. On the other hand we may well say that the accrual of this profit may be a fair indication of determination of any dispute that may hereafter arise in regard to the running of the factory or in case allegation of waste was made. If the appellants/defendants can at any future time show that the profits are so disproportionate compared to what has been earned by the Nazir of this Court the respondents/ plaintiffs could be deprived of possession. Such remedy shall be available to them, to make a proper application which shall be considered on merits. We are also of the view that the amount which is presently lying with the Nazir should be retained by him until further orders of this Court which may be passed after the disposal of the appeal or even earlier. This amount should be invested in interest bearing securities. This would be another safeguard to the interests of the appellants/defendants in case they succeed in the appeal because such amount could be utilized for compensating the appellants/defendants if they are found to be entitled to compensation for reasons of the appellants/defendants being deprived of the factory. In addition we also direct that the respondents/plaintiffs or any of them shall furnish security in the Burn of Rs.10,00,000 to the satisfaction of the Nazir of the Court and such security shall ensure to the benefit of the appellants/defendants if they succeed in the appeal. We further impose a condition that without the orders of the appellate Bench the respondents/plaintiffs shall not in any manner sell, alienate whether by mortgage or otherwise the factory in question or in any manner impair or damage any machinery in the factory. All such safeguards are being imposed by us in order to fairly safeguard the interest of the appellants/defendants if they succeed in the appeal.

In addition we also direct that the respondents/plaintiffs shall submit fortnightly accounts of all the production, income and outgoings to this Court. The account shall be given to the Nazir.

The main appeal shall be laid for hearing during 1984.

The other application before us is for joinder of legal heirs as a consequence of the death of plaintiff No.2. He had died before the filing of the appeal so that his name has not been arrayed in the title of the memo. of appeal as respondent. Without entering into the merits regarding justifiability of the persons proposed to be joined as such, we will direct that such persons shall be arrayed as respondents in the appeal. The question of their ,having any interest in the subject‑matter of this litigation shall, however, remain open for consideration as an issue before the appellate Bench.

The application for stay is dismissed but subject to the observations made in the order. The Nazi r shall hand over the factory to the respondents.

M.B.A. Stay application dismissed.

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