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Civil Appeal No.52 of 1986, decided on 8th February, 1987.
---O.XXVII, R.8-A & O.XLI, Rr.5 & 6--Stay of execution of decree--Grant of stay whether automatic in appeal filed by Government/public servant--Provisions of O.XXVII, R.8-A, C.P.C. exempting Government or public servant from furnishing security for stay of appellate decree nowhere provides that in every case where appeal was filed by Government or public servant, grant of stay without security would be automatic--Discretion of Appellate Court under O. XLI, Rr.5 & 6, C . P. C . either to grant or refuse stay of execution of decree, held, could neither be controlled nor taken away 'by R.8-A, O.XXVI, C.P.C.--provisions of Rule 8-A, O.XXVII, C.P.C. could only be invoked w, ere Appellate Court ordered stay of execution, but not where stay was refused.
Syed Shamim Raza for Appellant.
Muhammad Sharif for Respondent.
The appellant has applied for stay of a money decree in the suit and it is contended by the learned counsel for title appellant that in view of Rule 8-A of Order XXVII, C.P.C. no security is to be demanded as the suit was contested by the Government who is appellant in the case. It is true that the effect of Rule 8-A of Order 27 C.P.C. is, that in a case where the appeal is filed by the Government or a public officer who was sued in respect of an act alleged to be done by him in his official capacity and the suit was defended by the Government, or such public servant, the court shall not demand security while staying execution of decree in accordance with rules 5 and 6 of Order XLI, C.P.C. Rule 8-A of Order XXVII, C.P.C however, does not provide that in every case where an appeal is filed by the Government or such public officer the grant of stay without security is automatic. Rule 8-A of Order 27 C.P.C. neither controls nor takes away the discretion of appellate court to either grant or refuse the stay under Order XLI, Rule 5 C.P.C. It is only in a case where the appellate court decides to exercise the discretion in favour of appellant and orders of execution that provisions of Order XXVII, Rule 8-A C.P.C. will come in, play and it will not demand security as provided in rules 5 & 6 and of Order XLI, C.P.C. if the appellant happened to be the Government or a public servant. However, where the appellate Court does grant stay or refuses to grant stay the from of Order XXVII, Rule 8-A C.P.C. cannot be invoked. I will, therefore, first consider whether the appellant has succeeded in making out a case for grant of stay. From the decree in the suit and the findings given by the trial Court on issue No.6 it is quite clear that the appellant had auctioned the goods belonging to the respondent and the amount claimed in the suit related to the balance amount available with the appellant. Although in the written statement the appellant had denied their liability to pay the amount but in the decree the appellants were found liable to pay the same. In the application filed for stay of the decree no special circumstances have been shown for grant of stay. Since the amount decreed in favour of the respondent is that which was realized by the appellant as a result of sale of the goods belonging to respondent, there is no justification for grant of stay. The application is accordingly rejected.
H. B. T./I-15/K Appeal dismissed.
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