13.2 pre-action interest at the rate of 5% per annum; and fees, AIAC administrative costs, taxes as well as party to party [9] The parties agreed for this court to hear and decide the 3 OSs together. This court had dismissed the setting aside and stay of execution of the AD application and allowed the enforcement of the AD application. Upon allowing the enforcement of the AD in favour of Juang, the total Judgment Sum enforceable against BMG amounts to RM3,092,805.60. [10] Being dissatisfied with my decision, a Notice of Appeal (the said appeal) has been filed by BMG at the Court of Appeal and pending the disposal of the appeal, via Enclosure No. 15, BMG had applied to this court for a stay of the enforcement of the judgment. [11] pending the appeal, BMG filed a Notice of Appeal at the Court of Appeal against the decision in disallowing the stay application. D. ENCLOSURE 15 [12] The grounds of application for stay by BMG are as follows: i. Juang has taken steps to enforce the judgment against BMG. Since there is a pending appeal at the Court of Appeal and there are merits in its appeal, this application is so to maintain the status quo of the parties in order to give effect to the Court ; ii. In the event that the appeal is granted, BMG argues that Juang's bad financial position prevents it from being able to pay back the Judgment Sum (as determined by the AD), rendering the appeal nugatory; and iii. If the stay application is disallowed it will cause great injustice to BMG. E. [13] Due to failure to pay the Judgment Sum, Juang had commenced a Garnishee Proceeding against BMG where 13 banks were garnished for the Judgement Sum. However, upon having obtained the confirmation from one out the 13 banks that there is a balance which is sufficient to cover the Judgment Sum, Juang had undertaken to write to the other 12 [14] had awarded Juang with the contract works i.e Juang has been in the best financial position than it has been in the years preceding it. [15] There is no cogent reason that Juang will not be able to repay the Judgement Sum to BMG should BMG be successful in its appeal as Juang [16] Should this application be allowed, it is Juang that will suffer great injustice as it has been successful in its claim at the Adjudication Proceedings and the same has been allowed to be enforced as the Judgment of the court. However, Juang is yet to reap or enjoy the fruit-payment of the Judgment Sum. F. FINDINGS OF THE COURT [17] By virtue of Section 73 of the Courts of Judicature Act 1964 (CJA), an appeal filed against a decision does not constitute a stay of execution or proceedings: 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 [18] Hence, BMG cannot use the appeal as a reason for a grant of a Stay of Execution of the Judgment. It is trite that the winning party in a litigation will not be deprived of the fruit of his winning, as stated in the Court of Appeal case, Renew Capital Sdn Bhd & Ors v. ADM Ventures (M) Sdn Bhd & Anor And Another Appeal [2022] 8 CLJ 817; [2022] 6 MLJ 58 (CA), [2022] 5 AMR 353 Justice Lee Swee Seng JCA, while citing and discussing Ming Ann Holdings Sdn Bhd v. Danaharta Urus Sdn Bhd [2002] 3 CLJ 380, [2002] 3 MLJ 49, [2002] 3 AMR 2867: us it has been said ever so often that a successful litigant is generally not to be deprived of the fruits of his litigation. The law does not require that the unsuccessful litigant who is minded to appeal must be allowed to exhaust all avenues and tiers of appeal before the successful litigant, armed with a judgment of the court, especially for the payment of a judgment debt, may proceed with the execution (emphasis added) [19] Be that as it may, the granting of a Stay of Execution can be made possible as shown in the case of Kosma Palm Oil Mill Sdn Bhd & Ors v. Koperasi Serbausaha Makmur Bhd [2003] 4 CLJ 1; [2004] 1 MLJ 257, [2003] 5 AMR 758 where the Federal Court held as follows: stay of execution unless the court so orders. Accordingly, as Brown J said in Serangoon Garden Estate Ltd v. Ang Keng [1953] 1 LNS 98; [1953] MLJ 116 while commenting on the discretion to grant a stay: the Court will not deprive a successful party of the fruit of his litigation until an appeal is determined, unless the unsuccessful party can show special circumstances to justify it (emphasis added) [20] In relation to there being special circumstances, the Federal Court in Kosma Palm Oil Mill (supra) also said that: special circumstances to justify the grant of a stay of execution. The reasons must relate to the enforcement to the judgment. They must be deposed in the affidavit filed in support of the application (see Syarikat Berpakat v. Lim Kai Kok [1983] 1 MLJ 406). Where it is alleged that there is a danger of the unsuccessful party not being repaid if its appeal is successful for any reason like, for instance, the insolvency of the other party, this must be shown in the affidavit (see The Annot Lyle (emphasis added) [21] Therefore, BMG has to establish to this court the existence of special circumstance which warrants a grant of a Stay of Execution of the judgment in this case. [22] Based on the grounds for this application, there are only 2 major concerns that BMG has in relation to paying the Judgment Sum prior to the disposal of the appeal at the Court of Appeal: i. to maintain status quo; and ii. to recover the payment from Juang should BMG be successful in its appeal. [23] it has merits in its appeal and as such it is important to maintain status quo. In wanting to maintain status quo, BMG opposed dings as the enforcement exercise against BMG. Regarding this, BMG alleges that Juang acted in bad faith in initiating the Garnishee Proceedings against the 13 banks with a total amount of RM37,113,667.20 when the Judgment Sum is much lower. [24] However, during a case management before this court it was informed by Juang that although 13 banks where BMG is an account holder had been garnished initially but the total sum garnished is not as pleaded by BMG i.e RM37,113,667.20. In fact, the total sum of monies in all the 13 banks amounted to only RM3,416,249.57 and upon confirmation that only one (1) out of the 13 banks has an account balance which is close to the Judgment Sum is being garnished i.e RM3,092,805.60. Consequently, Juang had undertaken to withdraw the Garnishee Proceedings against all the other 12 banks where the balance in the accounts are insufficient to pay the Judgment Sum. [25] unfounded as the judgment against BMG in this case is purely monetary. In a situation where it involves a purely monetary judgment, it cannot render the appeal nugatory as in the case of Sigur Ros Sdn Bhd & Anor v Maybank Islamic Bhd & Anor [2018] MLJU 1373, where the High Court held as follows: Appeal rendered Nugatory? is an appeal pending before the Court of Appeal and that the First Plaintiff has a meritorious appeal. Having read the relevant Affidavit filed by the Plaintiff, I hardly find anything propounded by the Plaintiff to show that its appeal would be rendered nugatory if a stay of execution is not granted. It is clear that the Summary Judgment ordered by this court is purely on monetary judgment. To my mind, such appeal would only deemed nugatory only if the First Defendant [26] The final reaso financial standing is bad. However, it cannot be denied that this was the identical justification provided by BMG in its appeal for a stay of execution of the AD, which this court had dismissed. [27] Be that as it may, Juang had provided to this court statements of its financial status which shows that Juang has non-current assets of RM6,437,262.07, current assets of RM25,995,089.99, retained earnings of RM1,612,938.07 and revenue of RM33,795,264.35. These figures provided by Juang were not refuted by BMG and neither was there any averment or evidence by BMG that Juang is impecunious or insolvent. [28] After examining Juang's financial records, BMG's accusation against Juang is unfounded because, the financial statement shows that Juang is solvent and indicates no reasons to believe that Juang is not capable of re-paying BMG in the event BMG is successful in its appeal given that the Judgment Sum is only RM3,092,805.60. [29] On the grounds that there will be injustice done to BMG should the stay not be granted, this court fails to see the said injustice alleged by BMG as the winning party in this case being Juang has yet to enjoy the Counsel for Plaintiff: Mr. Chan Kheng Hoe & Mrs. Wong Sheng Wei (Messrs. Chong + Kheng Hoe) Counsel for Defendant: Mr. Lim Suat Yee (Messrs. Tuang, Chu & Co)