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SOKKALAL RAM SAIT v. NADAR et al.
NLR41V89
1938 Present:
Keuneman and Nihill JJ.
SOKKALAL RAM SAIT v. NADAR
et al.
94-D. C. (Inty.) Colombo, 6,138
Execution-Stay of
execution pending appeal-Proof of irreparable injury and substantial
damage-Civil Procedure Code, s. 761.
Stay of execution pending appeal is granted only when
the proceedings would cause irreparable injury to the appellant and where the
damages suffered by the appellant by execution would be substantial.
APPEAL
from an order of the District Judge of Colombo.
H. V. Perera, K.C. (with him N. K.
Choksy), for defendants, appellants.
R. L. Pereira, K.C. (with him Aiyer),
for plaintiff respondents.
Cur adv vult.
December 14, 1938. KEUNEMAN J.-
In this case the plaintiff sued the defendants for
infringement of certain trade marks, and claimed an injunction, and also
damages for passing off. The learned District Judge entered judgment for
plaintiff allowing injunction to issue in terms of the prayer, but awarded no
damages. On June 23, 1938, before the expiry of the time allowed for appealing,
the defendants moved for stay of execution, and they also filed an appeal
against the judgment, which is now pending. The learned District Judge refused
to stay execution, and dismissed the application made in this connection. The
present appeal is taken from that order.
Under section 761 of the Civil Procedure Code, the District
Judge had a discretion to allow stay of execution for sufficient cause, but he
could not make such order, inter alia, unless he was satisfied that
substantial loss might result to the party applying for stay of execution,
unless the order was made.
One point taken for the appellants was that the learned
District Judge had misdirected himself by stating in this order that the
defendant's user of the trade mark had not been honest, as found by himself in
the judgment in the case. In the first place it is not quite clear from the
context whether this statement was merely incidental, or whether the District
Judge rested some part of his finding on this. But even if we take the latter
view, I do not think the District Judge is debarred from taking such a matter
into consideration. In dealing with a similar application Sir W. Page-Wood,
V.C., said, " I do not think I ought to hold my hand simply on account of
the decision being under appeal, unless I have some doubt of the justice of the
decision." (A. G. v. Proprietors of the Bradford Canal
[1 2 Eq. 71 at 79.]. I do not think there has been any misdirection here.
It is also argued for the appellant that
the failure to stay execution would result in substantial, and even irreparable
damage to the defendants. The evidence in support of this contention is not
strong. In the affidavit field in support of the application there is a
statement that " if they (the appellants) are ultimately successful they
will sustain considerable loss and damage and also considerable prejudice to
their trade marks." It is to be noted that nothing has been said as
to the amount of business done in this par
