clr/1981/1981_1_673.pdf

(1981)Court; andthat for thisreason alonethis Court isnotprepared to grant the present application. Held,further, {ontheassumption that applicants application couldbe made underthesaid rule 18) that though under rule 18 of Order 35 this Court possesses a concurrent jurisdiction 5 as regards stay of execution and the relevant order of the trial Court isnottobetreated asbeing challenged byway ofappeal, in thelight oftheprinciples governing grant ofstay ofexecution pending appeal andofthecircumstances ofthis case, this Court would not beinclined togrant the stay of execution sought by 10 the applicants. Application dismissed. Cases referred to: Merry v. Nickalls [1873] L.R. 8 Ch. App. 205; Hansard v. Lethbridge, 8 T.L.R. 179; 15 KatarinaShippingInc. v. TheCargoonBoardtheship"Poly"

(1978)1 C.L.R. 355 at p. 360; London and Overseas (Sugar) Co. v. Tempest Bay Shipping Co. Ltd.

(1978)1 C.L.R. 367 at p.373; Doylev. WhiteCityStadium Limited[1935]I K.B.110atp. 128. 20 Application. Application by defendants for the stay of execution of the judgment incivil action No 1920/79pending thefinaldetermination of their appeal against such judgment. A. Pandelides, for the applicants. 25 R. Stavrakis, for the respondent. Cur. adv. vult. TRIANTAFYLLIDES P. read the following judgment. The applicants, as the defendants in civil action No. 1920/79 in the District Court of Nicosia, were adjudged to pay to the 30 respondent, as the plaintiff in the said action, the sum of C£10,492.682 mils, with 4% per annum interest as from July 6, 1981,when the judgment of the District Court of Nicosia was delivered. It appears that the liability in question of theapplicants arose 35 out of a contract of insurance entered into by them. 674 1 CX.R. Phoenix v. ΑΙ Khalaf Exhibition Triflntafjllides P. On September 5, 1981, they filed Civil Appeal No. 6306 against the aforementioned judgment of the District Court and on the same date they applied to the trial Court for stay of execution pending the determination of their appeal. The 5 trial Court made the fol'owing order on October 8, 1981:- 10 15 20 "There will bo a stay of execution of the judgment debt for ten days: if within this period the judgment creditor furnishes the judgment debtors with a bank guarantee from a commercial bank for the repayment of an amount uptotheamountofthejudgmentdebtin theevent and acco­ rding to the extent, if any, that thejudgment debtors are successful on appeal, thenthejudgment debtors aretopay theamountof thejudgment debttothejudgment creditor; but if thejudgment creditor should fail to furnish tothe judgment debtors such bank guarantee, the amount of the judgmentdebt is LobedepositedwiththeRegistrar,District CourtNicosiatoabidetheoutcomeof theappeal; indefault, execution may be levied after the lapse of the said period of ten days. The costs of the action to be paid to the advocate of the judgment creditor upon the furnishing by such advocate of a personal undertaking to repay same in the event that such order for costs is reversed on appeal". In view of Ihe provisions of rule 19 of Order 35 of the Civil 25 Procedure Rules the apphcants quite .properly applied in the firstinstance to the trial.Court for stay of execution. The order which has been made,as above, by the trial Court is in effect a stay of execution on terms. This is quite clear from, interalia, acomparisonwiththecaseof Merry v.Nickallsr 30 [1873]L.R. 8 Ch. Αρρ. 205, the relevant part of the report of which reads as follows:"The Defendant in this case had been ordered to pay to the Plaintiff a sum of about £1100 and the costs of the suit; as reported. 35 Mr. Buchanan now moved that the proceedings under the order for payment might be stayed, pending the Defendant's appealtotheHouseof Lords. TheDefendant was willing to bring the money into Court. 675 TriantnfyMdes P. Phoenix v. Al Khalaf Exhibition

(1981)Mr. Davey, for the Plaintiff, objected that his client would have to pay the money, and would tjien be out of pocket pending the appeal. . Their Lordshipsmadean order tostayproceedings under the order for payment; the"Defendant to pay the money 5 to the Plaintiff, the Plaintiff giving security for repayment iftheDefendant succeeded ontheappeal;or,the.Defendant, if the Plaintiff preferred that course, to pay the money into Court. The costs of the suit,to be paid according to the decree, on the solicitor undertaking to repay if the 10 Court should so direct". It is useful to point out, too, that in the Supreme Court Practice, 1979, vol. 1, p. 910,para. 59/13/2, the case of Merry, supra,is referred to under the heading of "Terms on which a stay is ordered". I am of the opinion that the proper course wasfor the applicants to seek a review-of the aforementioned order for stay of execution on terms, which was made by the trial Court on ,_October 8, 1981—(as, for example, in Hansard v. Lethbridge, 8 T.L.R. 179)—and not to apply, as they have done, afresh for 20 stay of execution to the Supreme Court; and for this reason alone I would not be prepared to grant theapplication for stay of execution which is now before me. The applicants, havingtreated,wronglyinmyview,the order made as aforesaid by the trial Court as,a refusal of stay of exe- 25 cution, have, consequently, made to this Court their present application which has come before me under rule 18 of Order 35 of the Civil Procedure Rules; and, subject to what I have already stated earlier in thisjudgment, I shall proceed to deal, too, with the applicants' application on the assumption that 30 it could be made under the said rule 18. Itis wellestablished that under suchrule thisCourt possesses a concurrent jurisdiction as regards stay-of execution and the relevant order of the trial Court is not to bs treated as being challenged by way of appeal (see, inter alia, in this respecl, 35 the Supreme Court Practice, 1979,vol. 1,p. 910,para.59/13/4). Theprinciples governingthegrantofstayofexecutionpending appeal have been expounded in, inter alia, Katarina Shipping 676 15 1 C.L.R. Phoenix v. Al Khalaf Exhibition Triantafyllides P- Inc. v. The Cargo on Board the ship "Poly",

(1978)1 C.L.R. 355, 360, and London and Overseas (Sugar) Co. v. Tempest Bay Shipping Co. Ltd.,

(1978)1 C.L.R. 367, 373,·and I need not repeat them now all over again. 5 10 Useful reference may be made, too, to the case of Doyle v. White City Stadium Limited, [1935] 1 K.B. 110, where (at p. 128) Loid Hanworth M.R. stated the following:"... although a plaintiff who is successful in the Court of first' instance is entitled to stand upon that judgment on the presumption that it is right, yet the defendants are entitled to take their case to a higher Court,..." As it appears from an affidavit sworn on October 13, 1981, andfiledin support oftheir present application bythe apphcants, they are prepared not only to furnish a bank guarantee that 15 they will satisfy the judgment debt due to the respondent in case their appeal fails, but they are, also, prepared to undertake to pay, in such a case, to the respondent the difference between the legalinterest whichthejudgment debt carries and the interest which the respondent would be receiving if the amount of the 20 judgment debt was to be deposited by the respondent in a bank in the meantime. On the other hand, the respondent has complied with the order made as aforesaid by the trial Court on October 8, 1981, and has furnished a bank guarantee as directed in that order; 25 thus, the appellants will not irretrievably lose any funds in case they are successful in their appeal in whole or in part. In the light of the relevant principles, and of the foregoing considerations, I would not be inclined to grant the stay of execution sought by the applicants. 30 In the result this application fails and is dismissed with costs. Application dismissed with costs. 677