Sri Lanka Law Reports
(1986) 1 SriL.R.
COURT OF APPEAL.
H. A. G'. DE SILVA. J. AND RAMANATHAN, J.
D. C. GAMPAHA 15375/L.
SEPTEMBER 2, 1985.
Civil Procedure – Execution pending appeal – Section 763 of the Civil Procedure Codeas amended by Act No. 53 of 1980 – Section 23 of the Judicature Act as amended byAct No. 37 of 1979.
The provisions of section 23 of the Judicature Act and section 763 (2) of the CivilProcedure Code make it clear that unless there is proof of substantial loss that mayotherwise result, execution of decree will not be stayed merely on the ground that anappeal has been filed.
APPEAL from order of the District Judge of Gampaha
S.D. Jayasundera for the 2nd defendant-petitioner.
T.8. Dillimuni for the plaintiff-respondent.
Cur. adv. vult.
Don Piyasena v. Mayawathie Jayasuriya
October 23, 1985.
This is an application by the defendant-petitioner to set'aside the orderof the District Judge dated 9.3.81 disallowing stay of execution ofwrit. The material facts are as follows :
Judgment was entered in favour of the plaintiff-respondent ejectingthe 1st and 2nd defendants from the premises in suit. The 2nddefendant-petitioner appealed against the judgment.
The plaintiff-respondent made application for writ of ejectment andpossession pending appeal. The 2nd defendant-petitioner filedobjections and averred that he was carrying on business yielding anincome of about Rs. 3,000 a month, that he had stock-in-trade worthabout Rs. 50,000 furniture and fittings worth Rs. 50.000.
The learned District Judge had considered the provisions of section763 of the Civil Procedure Code as amended by Act No. 53 of 1980.The learned District Judge has stated after considering all the facts, inparticular, the age of the plaintiff-respondent, the date on which theaction had been filed, the circumstances of the case, he took the viewthat execution of the decree should not be stayed as the 2nddefendant failed to show sufficient cause. The learned District Judgemade order allowing, the application for writ of execution..
At the hearing before us learned counsel for the 2nddefendant-petitioner urged that the District Judge failed to evaluatethe hardship caused to the defendant-petitioner who is carrying onbusiness yielding an income of Rs. 3,000 a month, stock worthRs. 50,000, articles worth Rs. 50,000. If the 2nddefendant-petitioner were to be ejected, he would lose his business,his sole means of livelihood and his employees would then be out ofwork.
Counsel for the plaintiff-respondent contended that the learnedDistrict Judge has correctly exercised his discretion, having regard tothe relevant facts as to the age of the plaintiff, the date of institution ofaction and the history of the case. Furthermore,' the 2nddefendant-respondent has had sufficient time to find alternativeaccommodation and the grounds set out by the 2nddefendant-respondent did not amount to a substantial loss.
Sri Lanka Law Reports
(19861 1 SriL.R.
The Judicature Act No. 2 of 1978 (section 23) merely gave ajudgment-debtor a right of appeal. Further it was by the JudicatureAmendment Act No. 37 of 1979 – section 23. that relief wasgranted by stating thus –
"Any party who shall be dissatisfied with any judgment, decree ororder pronounced by a District Court may (excepting where such aright is expressly disallowed) appeal to the Court of Appeal againstsuch judgment, decree, or order. But no such appeal shall have theeffect of staying the execution of such judgment, decree or orderunless the Distict Judge shall see fit to make an order to that effect.In such a case the party appellant shall enter into a bond with orwithout sureties as the District Judge shall consider necessary, toappear when required and abide the judgment of the Court ofAppeal."
The other relevant provision is section 763 of the Civil ProcedureCode as amended by Act No. 53 of 1 980 :
"(2) The Court may order execution to be stayed upon such termsand conditions as it may deem fit where –
the judgment-debtor satisfied the Court that substantialloss may result to the judgment-debtor unless an order forstay of execution is made , and
security is given by the judgment-debtor for dueperformance of such decree or order as may ultimately bebinding upon him".
The law applicable today, is the provisions of section 23 ofJudicature Act (as amended by Act No. 37 of 1979) read with section763 (2) of the Civil Procedure Code (as amended by Act No. 53 of1980).
Therefore, the position today is that section 23 permits the Court tostay writ of execution if it seems fit and section 763 (2) enables Courtto stay writ, provided the judgement-debtor satisfies court thatsubstantial loss may result.
It is clear from the provisions of law applicable that unless adefendant-petitioner has satisfied the District Judge that a substantialloss may result to him the execution of decree will not be stayedmerely on the grounds that an appeal has been filed.
Don Piyasena v. Mayawathie Jayasuriya (Ramanathan, J.)
We have considered the defendant-petitioner's affidavit filed andthe submissions made on his behalf. The material is not adequate toestablish that a substantial loss would be caused to the defendant ifexecution of writ is stayed. There is no evidence that he has looked forand failed to find alternative premises in the area. There may be nodifficulty in finding alternative premises having regard to his financialresources.
On the slender material placed before the District Judge, he couldonly have come to the conclusion that no substantial loss would becaused to the defendant. In our opinion, the learned District Judge hascorrectly and properly exercised his discretion in refusing theapplication for stay of execution of writ. The appeal is dismissed withcosts fixed at Rs. 210.
A. G. DE SILVA, J. – I agree.
1-DON PIYASENA v. MAYAWATHIE JAYASURIYA