Facho and Another v Siqueira and Others (C.C. 264/1929.) [1933] EACA 5 (1 January 1933)

ORIGINAL CIVIL.

Before LUCIE-SMITH, Ag. C. J.

OLIVIA DA RITTA SIQUEIRA E FACHO AND ANOTHER $(Plaintiffs)$

$\boldsymbol{v}.$

1, E. R. SIQUEIRA; 2, B. A. RODRIGUES; 3, R. A. RIBEIRO (Defendants).

C. C. $264/1929$ .

Supreme Court, jurisdiction of-Stay of execution-Inherent powers of the Court-Civil Procedure Rules-Order 39, Rule 4-East African Court of Appeal Rules, 1925, Rule 27-Civil Procedure Ordinance, section 99.

Held (10-11-33).—That the Supreme Court has inherent power ex debito justitiæ to order stay of execution.

Ralston for Applicant (Third Defendant).

Figgis, K. C., for Respondents (Plaintiffs).

On the 19th August, 1932, the Chief Justice (Sir Jacob Barth) ordered, inter alia, (1) that the first and second defendants do pay unto the plaintiffs the sums mentioned in the decree; (2) that the present applicant, the third defendant, do pay the sum found due by him; and (3) that execution should not issue against the third defendant until execution has been levied against the first and second defendants.

The matter came before Lucie-Smith, Ag. C. J., on an application by the third defendant for stay of execution of the decree pending the hearing and determination of an application to the Court of Appeal for Eastern Africa for leave to appeal out of time, and the subsequent determination of the appeal if such application were allowed.

Ralston, supporting the application, submitted that the application for leave to appeal was listed for the Court of Appeal in December, 1933, and that therefore Order 39, Rule 4, justified an application for stay of execution at this stage. His client was prepared in any event to give security.

Figgis submitted, in reply, that no sufficient reason had been given why a stay of execution should be granted, nor did the affidavit in support of the application show sufficient ground. The application was based on an application for leave to appeal only, and no special circumstances had been set out in the affidavit as to why such an order should be made. He referred

to: In re the Queensland and Mercantile Agency Company, 61 L. J. (Ch. D.) 48; Monk v. Bartram, (1891) 1 Q. B. D. 346; Barker v Lavery, 14 Q. B. D. 769; Atkins v. The Great Western Railway Company, 2 T. L. R. 400; The Annot Lyle, 11 P. D. 114 at 116.

Ralston replied.

RULING.—This is an application by the third defendant herein for stay of execution of a decree passed against him by the learned Chief Justice. In his judgment, the learned Chief Justice adopted the suggestion made by Mr. Figgis (for the plaintiffs) that execution against the third defendant (the present applicant) be postponed until execution be levied against the other defendants. Such execution has now been levied-not, I gather, with entire success.

The applicant relies on Order 39, Rule 4, but that Order is headed, "Appeals to the Supreme Court." Rule 4, sub-sections $(1)$ and $(2)$ , would not seem to apply, for there has been no appeal to the Supreme Court, and also the application for stay has not been made before the expiration of the time allowed for appealing.

Mr. Figgis has suggested that Rule 27 of the East African Court of Appeal Rules, 1925, is applicable, but I hardly think those Rules apply at present, as no appeal to the East African Court of Appeal has been lodged; only an application for leave to appeal out of time has been filed. The last hope therefore of the applicant under the rules would appear to be Order 18, Rule 11. Sub-section (1) laws down that the Court at the time of passing the decree may order that payment of the amount of the decree shall be postponed, while sub-section (2) lays down that payment of the amount decreed may be postponed after the passing of the decree "with the consent of the decree holder". The decree holder in this case is very far from consenting.

The applicant would therefore appear to have no remedy under the rules, and we will now examine the Civil Procedure Ordinance itself.

Section 99 of the Ordinance reads: "Nothing in this Ordinance shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court." This section is modelled upon section 151 of the Indian Code. Mulla, at p. 393 et seq., gives a comprehensive list of matters in which the Court has inherent power, although the Code contains no express provisions. Item $(y)$ reads: "To order a stay of execution in view of an application by a judgment debtor to the Judicial Committee for special leave to appeal to His Majestv in Council." And this dictum is supported by the case of Nanda Kishore Singh v. Ram Golam Sahu, reported in 40 Cal. at page 955. There is a further inherent power laid down

by Mulla, under item $(p)$ , which reads: "To stay proceedings pursuant to its own order in view of an intended appeal." But unfortunately the authority referred to, i.e. In the Goods of Nuchin Narain, (1901) 5 C. W. N. 781, is not available.

I therefore find on the authority of Nanda Kishore Singh (supra) that this Court has inherent power, ex debito justitiae, to order the stay of execution applied for.

I order stay of execution until such time as the Eastern Africa Court of Appeal shall have dealt with the application for leave to appeal out of time, when an application for further stay should be made to the Appeal Court.

The applicant states he is prepared to deposit security with the Court, and I order that he lodges security in an amount to be found by and to the satisfaction of the Registrar, unless the respondents give security in the like amount for the repayment of the money in the event of the decree being reversed. If such security be given by the respondents, then stay of execution should not be granted. The costs of this application will be costs in the appeal.

I would suggest that reference to the order made in Dhunjibhoy v. Nisboa, XIII Bom. p. 241 at p. 242, will be very helpful in drawing up the order on this application.

Respondents to have seven days in which to file their security if no such security filed. Applicant to file his security within seven days thereafter.