Supreme Court dismisses appeal against refusal to stay execution of judgment following failed settlement and arbitration.

[*1056] 1971 May 25

(TRIANTAFYLIDES, P., HADJIANASTASSIOU,

A. LOIZOU, JJ.)

APPELLATE JURISDICTION

Mousoulides Trading Co. and others,

Appellants-Defendants,

v.

Kypronics of Nicosia,

Respondents-Plaintiffs.

(Civil Appeal No. 4977).

Civil Procedure - Execution - Stay of - Appeal against refusal of an application to stay execution - Court of Appeal not persuaded that this is a case in which the exercise of the trial Court's discretion should be interfered with.

Chr. Mitsides, for the Appellants.

L. Papaphilippou, for the Respondents.

JUDGMENT

The judgment of the Court was delivered by:-

TRIANTAFYLLIDES, P.: In this case the appellantsdefendants appeal from a decision, dated the 10th April, 1971, of a Full District Court in Nicosia refusing to stay the execution of a judgment which was given against them on the 5th June, 1970, in civil action DCN 2971/69, on the basis of a settlement arrived at between the parties.

As a result of the settlement, which

is set out in a document filed in Court, judgment was given against [*1057] the appellants in respect of a claim, in the action,

by the respondents for money due to them by the appellants, and the counterclaim, in the same action, of the appellants against the respondents, was withdrawn on having been agreed between the parties that the matters arising in relation thereto would be referred to arbitration; it was, also, agreed that there would be three months’ stay of execution in relation to the judgment given against the appellants.

It appears that subsequently the arbitration proceedings became abortive and a new civil action, DCN 1532/71, was filed by the appellants in respect of what they have claimed by means of the counterclaim in the earlier action.

In view of these developments an application was made to the Court below for further stay of execution until the determination of the new action; the stay was, as already stated, refused and, as a result, this appeal was made.

The learned judges of the Court below, in exercising their relevant discretion, took the view that this was not a proper case in which to stay execution as applied for by the appellants; and we have not been persuaded that this is a case in which the exercise of such discretion should be interfered with: If the relevant application of the appellants had been successful this would have amounted, in effect, to a variation of the agreement which was concluded between the parties in relation to the settlement of the action in which the judgment, of which the execution is sought to be stayed, [*1058] was given; moreover, what followed after that settlement do not, in our opinion, constitute circumstances which should either have made the Court below grant the further stay of execution applied for or which call for our intervention in the matter in favour of the appellants.

As a result this appeal is dismissed with costs.

Appeal dismissed with

Costs.