(1984)1984 March 24 [TRIANTAFYLLIDES, P.] KORINA FOTIOU AND ANOTHER, Appellanis-Defendants. v. PETROLiNA LTD., Respondents-Plaintiff's. (Application in Civil Appeal No. 6702). Civil Procedure—Appeal—Stay of execution pending appeal—Rule 18 of Order 35· of the Civil Procedure Rules—Appeal against dismissal of preliminary objections—And dismissal of application for stayingfurther proceedingsin the actionpending determination of the appeal—No appeal against latter dismissal—A Judge of this Court has no jurisdiction, under the above rule, to stay the further trial of the action pending the determination of the appeal. in the absenceof an appealagainst the dismissalof theapplication for stay of the proceedings. CivilProcedure—Appeal—Piecemealappeals—Havetobediscouraged— Appeal against dismissal of preliminary objection in the course of the trial—Court of appeal will not, in general, stay the trial of the issues offact pending the appeal. On the 21st March, 1984, the trial Court dismissed certain legal objections which were raised by the appellants and fixed the further hearing of the action for the 24th March, 1984. As against the dismissal an appeal was filed on the 21st March, 1984; and on the following day there was, also, filed an applicationforan order staying further proceedingsintheaction pending the determination of the appeal. Following the dismissal of this latter application, the appellant filed the present application* seeking an order staying the proceedings in the action until the delivery of thejudgment of the Supreme Court in this appeal. Theapplication wasbasedon rule (8of Order 35of rtieGvil Procedure Rules which is quoted at p. 710 post. 708 I C.L.R. 5 10 15 20 Fotiou and Another v. Petrolina Ltd. Held, that in view of the fact that rule 18of Order 35 of the CivilProcedureRulesappearstorelateonlyto "stay ofexecution or of proceedings under the decision appealed from" and as by this application it is not being sought by the appellant to stay the execution of, or any proceedings under, the decision of the trial Court, on the 17th March 1984, dismissingthe preliminary objections which were raised by counsel for the appellant, but there is only being sought to stay further proceedings in the action pending the determination nf the appeal against the aforesaid decision of the trial Court on the 17th March 1984, this Court does not possessjurisdiction under rule 18of Order 35, above, to stay the further trial of the action pending the determination of this appeal. Held, further, that even if this Court hadjurisdiction to grant a stay of further proceedings in the action, on the strength of the present application under rule 18 of Order 35, it would, in the exercise of its discretion, have refused to order such a stay not only because piecemeal appeals have to be discouraged (see, inter alia, Christofidou v. Nemitsas
(1963)2 C.L.R. 269) but, also, because when a question of law has been decided on a demurrer, or on a preliminary objection, and an appeal has beenfiledtheCourt of Appeal willnot, ingeneral, staythetrial of the issues of fact pending the appeal. Application dismissed. 25 Cases refeired to: Christofidou v. Nemitsas
(1963)2 C.L.R. 269; In re J.B. Palmer'sApplication [1883] 22 Ch. D. 88, Application. Application by appellant for an order staying the proceedings 30 in Action No. 1425/82 before the District Court of Lamaca (Papadopoulos, P.D.C.) until the delivery of the judgment of the Supreme Court in this appeal. Chr. Theodoulou, for appellant (defendant 1). Chr. Triantafyllides, for the respondents. i« Cur. adv. vult. 709 Fotiou and Anotherv.Petrolina Ltd.
(1984)TRIANTAFYLLIDES P. read the following decision. During the hearing of civil action No. 1425/82 before the District Court of Lamaca, on the 17th March 1984, counsel appearing for thefirstdefendant—now theappellant—raised aspreliminary issues certain legal objections. They were dismissed by the 5 trial Court and against its decision the present appeal has been filed on the 21st March
- When the trial Court dismissed the preliminary objections itfixedthefurther hearing oftheaction fortoday; andit refused, also, on the 22nd March 1984,an application of the appellant 10 for an order staying further proceedings in the action pending the determination of her appeal. Theappellant filed thepresent application onthe22nd March 1984andsheseeks an order staying theproceedings intheaction until the delivery of thejudgment of the Supreme Court in this 15 appeal which, of course, could not have been fixed for hearing by today. This application seems to be based on rule 18of Order 35 of the Civil Procedure Rules which reads as follows; "
- An appeal shall not operate as a stay of execution 20 or of proceedings under the decision appealed from except so far as the Court appealed from or the Court of Appeal, or a Judge of either Court, mayorder; andno intermediate act or proceeding shall be invalidated, except so far as the Court appealed from may direct. Before any order 25 staying execution isentered, the person obtaining the order shallfurnish suchsecurity(ifany)asmayhavebeen directed. If the security isto begiven by means of a bond, the bond shall be made to the party in whose favour the decision under appeal was given". 30 In view of the fact that the above rule appears to relate only to "stay of execution or of proceedings under the decision appealed from'" andas bythisapplication it isnot being sought by the appellant to stay the execution of, or any proceedings under, the decision of the trial Court, onthe 17thMarch 1984, 35 dismissing the preliminary objections which were raised by counsel for theappellant, but there is only being sought to stay further proceedings in the action pending the determination 710 1 C.L.R. Fotiou and Another v. Petrolina Ltd. Triantafyllides P. of the appeal against the aforesaid decision of the trial Court on the 17th March 1984, Iam of the opinion that 1 do not possess jurisdiction under rule 18 of Order 35, above, to stay the further trial of the action in question pending the determination 5 of this appeal. I would add that perhaps the proper course might be for the appellant to appeal against the decision of the trial Court, of the 22nd March 1984, to proceed with the hearing of the action and then seek a stay of proceedings pending the outcome 10 of her appeal; but the appellant hasnotasyetappealed against that decision. In any case, even if I have jurisdiction to grant a stay of further proceedings in the action, on the strength of the present application under rule 18 of Order 35, I would, in the exercise 15 of my discretion, have refused to order such a stay not only because piecemeal appeals have to be discouraged (see, inter alia, Christofidou v. Nemitsas,
(1963)2 C.L.R. 269) but, also, in the light of case-law such as In re J.B. Palmer's Application, [1883] 22 Ch. D. 88, where there was expounded the principle 20 that when a question of law has been decided on a demurrer, or on a preliminary objection, and an appeal has been filed the Court of Appeal will not, in general, stay the trial of the issues of fact pending the appeal; and though the Re Palmer's Application case, supra, was decided long ago it appears that 25 the principle stated then still applies (see, inter alia, the Supreme Court Practice, 1982, vol. 1, Order 59/13/1, p. 955). I have, therefore, decided to dismiss this application; but with no order as to its costs as counsel for the respondents has not claimed any costs. 30 " Application dismissed. No order as to costs. 711