(1986)1985 February 13 [TRIANTAFYLUDES, P.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION THE REPUBLIC OF CYPRUS, THROUGH THE EDUCATIONAL SERVICE COMMISSION, Applicant, v. CHRISTOS HJIEFTYCHIOU, Respondent. (Application in Case No. 314179). Appeal—Revisional Jurisdiction Appeal—Practice—Slay of execution of an annulling decision pending appeal to the Full Bench of this Court— The Civil Procedures Rules, Ord. 35, rules 18 and 19—Applicable mutatis mutandis, by virtue of The Appeals (Revisional Jurisdiction) Rules, 1964—In the circumstances of this case there would be an order staying execution as aforesaid. 5 Applicant's disciplinary punishment was annulled by a first instance decision of this Court. The Educational Service Commiss:on filed an appeal and the present appli- 10 cation for an order staying the execution of the aforesaid annulling decision pending appeal. Held, granting the application for stay of execution:
(1)The present application has to be dealt with on the strength, in'er alia, of Ord. 35, rules 18 and 19 of the 15 Civil Procedure Rules which are applicable, mutatis mutandis, in virtue of rule 3 of the Appeals (Revisional Jurisdict;on) Rules, 1964.
(2)The argument of counsel for the respondent that if the stay applied for is not granted, the disciplinary proceedings will have to be pursued before the outcome of 2628 20 3 C.L.R. Republic ν, HjiEftychiou the appeal cannot be accepted because the Commission may await the outcome of the appeal. 5 10
(3)If the stay applied for is not granted, considerable and extensive financial adjustments will have to be made as a result of the annulling decision. Such adjus'ments will be found to have been made in vain, if the appeal is successful. If the stay is granted, the situation will remain as it is and, if the appeal is successful, full res titution may be made to the respondent. In the light cf the foregoing the application will be granted. Application granted. Cases referred to: Vets v. The Republic
(1979)3 C.L.R. 537; The Republic v. Petrides
(1981)3 C.L.R. 246: 15 Christou v. The Republk
(1982)3 C.L.R.
- Application. 20 Application for the stay of execution of a judgment in recourse No. 314/
- whereby the sub judice decision of the applicants by means of which the disciplinary conviction and punishment imoosed on aoplicant was annulled, until the final determination of an appeal filed -igainst such judgment. A. S. Angelides, for the applicant. C. Hadji Pieras, for the respondent. 25 30 Cur. adv vult TRIANTAFYLLIDES P. read the following decision. BM means of the present application there is. in effect, being sought an order staying the execution of tlu judgment which I delivered in a recourse under Article 146 of the Consiitution and by means of which there was annulled the disciplinary conviction of the respondent, and the discipli nary pun ; shment which was imposed on him as a result of such conviction, bv the applicant Educational Service Commission. 2629 Triantafyllides P. Republic v. HjiEftychiou
(1986)As the Commission has appealed against my sa;d judgment by means of Revisional Jurisdiction Appeal No. 389 the stay of execution is being sought until the determination of such appeal. The respondent, who was the successful applicant in the said recourse, has opposed the application for stay of execution. I am dealing with this application on the strength, inter alia, of my powers under rules 18 and 19 of Order 35 of the Civil Procedure Rules, which are applicable, mutatis mutandis, to revisional jurisdiction appeals by virtue of rule 3 of the Appeals (Revisional Jurisdiction) Rules of Court, 1964 (see No. 2 in the Second Supplement to the Official Gazette of the Republic of the 19th November 1964). 5 10 As I have explained in a decision given on a similar occasion in Veis v. The Republic,
(1979)3 C.L.R.
- 544, I consider that a Judge of this Court who has delivered a first instance judgment in a recourse possesses jurisdiction to stay, in a proper case, the execution of such 20 judgment pending the determination of a revisional jurisdiction appeal which has been made against it under section 11
(2)of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law 33/64); and I have adopted the same view later on in The Republic v. Petrides,
(1981)25 3 C.L.R. 246, 248. The case of Christou v. The Republic,
(1982)3 C.L.R. 634. which was referred to in the course of the arguments of counsel, is distinguishable from the present case because in the Christou case there was not being sought stay of 30 execution of a first instance judgment in a recourse but a provisional order, under rule 13 of the Supreme Constitutional Court Rules of Court, suspending, pending the determination of a revisional jurisdiction appeal, the effect of the administrative decision in relation to which there was 35 delivered the appealed from first instance judgment, which had dismissed a recourse made against such decision. 2630 15 3 C.L.R. Republic v. HjiEftychiou Triantafyllidos P. I have considered the present application for stay tit execution in the l;ght of the relevant principles which guide the exercise of 'he d:scretionary powers in relation to staying the execution of a first instance judgment while an 5 appeal against it is pending, as such principles have been applied in the Vets and the Petrides cases, supra, and, of course, bearng always in mind that the said discretionary powers should be exercised in the light of the particu'ar circumstances of each individual case; and. indeed, the 10 circumstances of the present case are substantially different from those ; n the Vet's case and in the Petrides case. The respondent has, in the present case, been successful, in the first instance, in his recourse against his disciplinary conviction and punishment, which though they did not re15 suit in the termination of h;s services they entail serious adverse for him financial consecmences. I do not agree with counsel for the Educational Servce Commission that if I refuse the app'ied for stav of execution then the disciplinary process against the e "indent 20 shou'd be ni<»Mied a'l over again before the ou'.-ome <M the r evi ! ioiu! jurKd'ction appeal which has been ni.vlo against my first instance judgment in this case: because. as in the case of Petrides, Mipra, the Commission may await the outcome of such appeal before deciding whether or 25 not it Is necessary to embark once again upon the discip,:nary process against the respondent. On the other hand, unl:ke the position in the Vets case. supra, considerable and extensive financial adjustments wil' have to be made as a result of my first instance judgment 30 if its execution is not stayed pending the determination o! the revis;onal jurisdiction appeal wh'ch has been filed against it; and atl these adjustments «ill be found to haw been made in vain if my first instance judgment is rewr.eJ on appeal. On the other hand it the applied for sta\ ot 35 execution is granted the situat:on will icmaui JS it <s and full restitution may be made in favour of the respondent to the present application if the appeal again-t m\ first instance judgment in this case is eventually d-Mnissed 2631 Triantafyllfdes P. Republic v. HjiEftychiou
(1986)I have, consequently, decided, in the light of all the foregoing, to grant an order staying the execution of my first instance judgment until the determination of the revisional jurisdiction appeal which is now pending against it. Application granted. >632 5