Vide an agreement dated July 26, 1995 the plaintiff had offered two banking facilities to the defendant, namely, a term loan of RM 23, 500,000 and a bridging loan of RM 36, 500,00 (hereinafter referred to as the facilities). As security, pursuant to another agreement dated November 12, 1995, the defendant had charged a couple of immoveable properties (hereinafter referred to as the impugned properties) for the above facilities. As a consequence of its failure to service the facilities, the plaintiff had thereupon filed and served an originating summons against the defendant, praying for

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vacant possession of the impugned properties, and an order for their sale pursuant to Order 83 of the Rules of the High Court 1980. The plaintiff was successful and the court had meted out the order on January 7, 2002 as provided for under section 256 of the National Land Code 1965.

Being dissatisfied with my order of vacant possession and sale, the defendant had filed a notice of appeal to the Court of Appeal. Vide summons in chambers dated October 10, 2002 the defendant had filed for a stay of execution order, pending the appeal at the said appeal court The following grounds were ventilated before me, viz.:

1. an appeal had been filed at the Court of Appeal;

2. there were merits in the appeal with the chances of being

successful being tremendous;

3. if the stay of execution were not allowed in the event of a

successful appeal, the effect would be negated; and

4. there were special circumstances in this case which warrant

a stay.

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It is trite law that an appeal does not operate as a stay of execution, and this is provided for under section 73 of the Courts of Judicature Act 1964 (Revised 1972). It reads:

"An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from unless the court below or the Court of Appeal so orders and no intermediate act or proceeding shall be invalidated except so far as the Court of Appeal May direct."

The above provision is no different in spirit or purpose, inter alia, as found in the following laws:

i. Order 55 rule 12 of the Rules of the High Court 1980;

ii. R. 13 of the Rules of the Court of Appeal 1994;

iii. Order 49 rule 4 of the Subordinate Court Rules 1980; and

iv. Order 59 rule 13 (1) of the English Rules of the Supreme Court.

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From the above section of section 73 of Act 91, it is obviously clear that an appeal shall not operate automatically as a stay of execution, though the High Court has powers to grant stay pending an appeal. In Zasalim Development Sdn Bhd v. Lum Siew & Sons Sdn Bhd the court had occasion to remark:

"It is now trite law that an appeal to the Court of Appeal will not automatically act as a stay of execution [Wu Shu Chen (sole executrix of the estate of Goh Keng How, deceased v. Raja Zainal Abidin bin Raja Husin & Anor; section 73 of the Courts of Judicature Act, 1964; rule 13 Of the Rules of The Court of Appeal, 1994; and Che Wan Development Sdn Bhd v. Co-operative Central Bank (1989) 3 MLJ 40".

By virtue of the words legislated in section 73, a High Court has an absolute and unfettered discretion as to the granting or refusing of a stay. As an accepted rule, it will only grant one if the court is satisfied that there are special circumstances which will warrant that stay, and which circumstances must be deposed in the affidavit supporting the application (Serangoon Garden Estate v Ang Keng (1953) 19 MLJ 116; Syarikat Berpakat v Lim

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Kai Kok (1983) 1 MLJ 406; Leong Poh Shee v Ng Kat Cheong (1966) 1

MLJ 86). At the end of the day, the granting of that stay will depend on the court's discretion, the exercise of which must be dependant on established judicial principles. The court will certainly not err if the above principles are identified and adhered to (Mohd Mustafa v. Kandasami (No.2) [1979] 2 MLJ 126; Kerajaan Malaysia v. Jasanusa Sdn Bhd (1995) 2 MLJ 105; Kerajaan Malaysia v. Dato' Haji Ghani Gilong (1995) 3 CLJ 161).

As stated ab