(1984)1984 February 2" [TRUMTAIYLLIDES. P I ANTONIS MAVROCHANNA AND ANOTHER, Appellants-Defendants I XENfS D MICHAEL. Respondent-Plaintiff (Appluatio-i m Civil Avpeal No 6655) C Ί Ptoiedurs— Appeal— Stay of "\c(utioii pending appeal—£>;\eetton of th· Cov i —Principlesapplicable—Ru'c 18 of Ord'i 15 oj the Ciui Proai'm Ri>/"\-Jadgnvn; pr^inbwg ho)\ a mtisttna may be abattd—Stayed subject to conditu is tnchtdtι? the ft'intshmg of securit\ 5 The tn,U Court found that inthe way mwhich therewas being operated by the appellants a discotheque, which was m thr* same building as the residence of the respondent there w;>s caused to him nuisance in the sense of section 46 of the Civil Wrongs Law, Cap 148 and it proceeded to make an order for the abate- 10 ment of the nuisance and prescribed how the discotheque should be operated by theappellants in order to avoid causing a nuisance to the respondent An appeal was filed against the above judg ment and,also, an application* for an order staying the execution of the judgment pending the determination of the appe.il 15 On the application for stay Held, that rule 18 of Order 35 of the Civil Procedure Rules ι* drafted so widely, especially by the use therein of the term "decision", that it is applicable to an order such as the one against which the present appeal was made,and thatany narrower construction of rule 18 would not be reasonable or proper, that though the respondent, as a successful plaintiff, should not be deprived of the fruits of the litigation which till now has • Theapplication was basedon rule 18 of Order 35 of theCivil ProcedureRules. 760 20 1 C.L.R. 5 10 Mavrochanna and Another \. Michael evolved in his favour and has culminated in thejudgmeat of the trial Court care should be taken, in so far as this is compatible with a proper exercise of the discretion under rule 18 of Order 35, not to render the present appeal nugatory to the detriment of the appellants; thai an order staying execution may be made on certain conditions, including ;he furnishing of security; and that, therefore, an order staying execution of the part of the judgment of the trial Court which relates to the mode of opera tion of the discotheque in question by ihe appellants will be granted subject to conditions, one of them being the furnishing of security in the sum of C£3.000 (vide p. 763 post as to the conditions). Application granted Cases referred t o : 15 Scheepswerf Bocivwes-Grunov. The Ship "Algazera" 1 C.L.R. 595;
(1980)E.isex Overseas Trade Services Ltd. v. The Legem Shipping Co. Ltd.
(1981)I C.L.R. 263; 20 "ΡΙιο.·κϊ\" Greek General insurance Co. S.A. v. Al Khahif Exhibition
(1981)1 C.L.R. 073; Sewing Machines Rentals Ltd. v. Wilson [1975] 3 All E.R.
- Application. Application for an order staying the execution of the judgment given by the District Court of Lamaca in an action for nuisance. 25 Chr. Triaittafyllides, for the appellants. A. Poelis, for the respondent. Cur. adv. vttlt. 30 TRIANTAFYLLIDES P. read the following decision. By means of this application there is being sought an order staying the execution of thejudgment given by the District Court of Lamaca in an action for nuisance on the 18th November
- The trial Court found that in the way in which there was being operated by the appellants a discotheque, which is in the same building as the residence of the respondent, there was 761 Tri;intaf>llides P. Mavrochanna and Another >. Michael
(1984)caused to him nuisance, in the sense of section 46 of the Civil Wrongs Law. Cap.
- and it proceeded to make art order for the abatement of the nuisance and prescribed how the dis cotheque should be operated by the appellants in order to avoid causing a nuisance to the respondent. 5 Iamdealing with this app!icat:on pursuant to rule 18of Order 35 of the Civil Procedure Rules; and I take notice that an application for stay of execution has already been made to the trial Court, as envisaged by rule 19 of Order 35, but it has been refused. 10 Counsel for the respondent has submitted that, in view of its nature, the execution of the order made by the trial Court in this case for the abatement of the nuisance cannot be stayed under rule 18 of Order
- 1am, however, of the opinion that the said rule 18 is drafted so widely, especially by the use therein 15 of the term "decision", that it is applicable to an order such as the one against which the present appeal was made. Any narrower construction of rule 18 would not be reasonable or proper. The principles which should guide this Court in granting 20 or refusing an order for stay of execution pending an appeal have already been stated in cases such as ScheepswerfBodewesGruno v. The Ship "Algazera',
(1980)1 C.L.R. 595, Essex Overseas Trade Services Ltd. v. The Legent Shipping Co. Ltd.,
(1981)ί C.L.R. 263 and "Phoenix" Greek General insurance 25 Co. S.A. v. Al Kha/af Exhibition,
(1981)1 C.L.R. 673. II is settled that the respondent, as a successful plaintiff, should not be deprived of the fruits of the litigation which till now has evolved in his favour and has culminated in the judgment of the trial Court. On the other hand, care should 30 be taken, in so far as this is compatible with a proper exercise of the discretion under rule 18 of Order 35, not to render the present appeal nugatory to the detriment of the appellants. It is clear from the wording of rule 18, above, that an order staying execution may be made on certain conditions, including the fujTtishmg of security (see, in this respect, Sewing Machines Rentals Ltd. v. Wilson, [1975] 3 All E.R. 553). 762 35 I C.l.-li. Mmnurhanna and Anuiher v. Michael Trianlafvlliilcs P. In the light of all relevant considerations 1have decided lo griini an order staying execution uf the part of the judgment of tlietrial Court which relates to the mode of operation of the discotheque in question by the appellants, but on the following 5 conditions: First, that during the period when the order for stay of execution is in force the discotheque will not be operated in such a manner as to cause a nuisance to the respondent and that if the respondent can establish that the appellants do operate iO the discotheque in a maimer constituting a nuisance he will be entitled to apply to this Court seeking the review or rescission of this order for stay of execution. Secondly, that the appellants \vi!! furnish satisfactory security in the sum of C£3,000 in respect of their liability to pay such 15 damages as may be found to be payable to the respondent if. in breach of the order made today, they operate their discotheque in a manner which constitutes a nuisance. Of course, the order foi stay of execution which I have just made is subject to appeal and may, also, be varied or set aside 20 by the Appeal Bench of the Supreme Court which will eventually hear this appeal. As the record of this case required for the purposes of this appeal will be ready in about a month's time this appeal is fixed. with the consent of both sides, on the 28th March 1984 and on 25 that date an Appeal Bench will either hear it or make such order as it may deem fit in this respect. Orderaccordingly. 763