Atukorale v. Samynathan.
1939Present : Moseley and Soertsz JJ.
ATUKORALE v. SAMYNATHAN.[In Revision.]
C. Ratnapura, 5,916.
Revision—Appeal pending—Powers of Supreme Court to revise order of the
District Court—Civil Procedure Code, s. 753, Courts Ordinance, ss.
21 and 40.
The powers given to the Supreme Court by way of revision are wideenough to give it the right to revise any order made by an original Courtwhether an appeal has been taken against it or not.
This right will be exercised in a case in which an appeal is pending onlyin exceptional circumstances as, for example, to ensure that the decisiongiven on appeal is not rendered nugatory.
A PPLICATION for revision of an order of the District Judge of** Ratnapura.
H. V. Per era, K.C. (with him N. E. Weerasooria, K.C., E. A. P. Wijeye-ratne, E. B. Wikremanayake, and V. A. Jayasundere), for defendant,petitioner.
R.-L. Pereira, K.C. (with him Barr Kumarakulasingham), for plaintiff,respondent.
M. T. de S. Amerasekere, for Proctor O. M. L. Pinto.
Cur. adv. vu It.
SOERTSZ J.—Atukorale v. Samynalhan.
March 17, 1939. Soertsz J.—
On January 10, 1939, the District Judge of Ratnapura entered decreedeclaring the plaintiff-respondent entitled to certain lots of land andordering the defendant-petitioner to pay as damages which had accruedat the date of the action, a sum of Rs. 2,000 and further damages atRs. 150 a month till the plaintiff is restored to possession of those lots.The decree also made order for the payment by the plaintiff to the. defendant of certain compensation in respect of improvements. OnJanuary 11, 1939, the defendant petitioner appealed against thejudgment and decree entered by the District Judge. On January 19'.he plaintiff-respondent applied for execution of the decree “ byissue of writ for the recovery of damages allowed until delivery ofpossession and also by issue of order of delivery of possession of the lotsdecreed to the plaintiff ”. This application was opposed by the defend-ant-respondent on February 23, 1939. which so far as I can gather fromthe material before me, was the date fixed for inquiry into the matter ofthe legality and sufficiency of the security tendered for costs inappeal.
The learned Judge made order on the question of security, and thenaddressing himself to the application for writ of execution said “ noobjection by affidavit or otherwise was made by the defendant againstthe allowance of the application. I would therefore allow the applicationof the plaintiff for execution ”. From this order too, the defendant hasappealed. In the ordinary course, these appeals will not come up forhearing for some time, and the petitioner makes this application for therevision of the order made by the District Judge in regard to execution onthe ground that if the writ is executed in the manner execution is prayedfor, in the event of his appeal turning out successful, it will be of doubtful,if of any value to him.
Counsel for the plaintiff-respondent opposes this application for revisionon a matter of law and on the merits. He contends firstly that in thecircumstances as alleged by the petitioner, this Court has not the right toexercise its powers of revision, because there is already an appeal pending.He relies on two Indian cases in support of this proposition, namely, thecases reported in the All India Reports, 1923 (D. C.) page 128, and AllIndia Reports, 1931 (Bombay), page 232. I have examined those cases,and in my opinion they have no application at all on the point with whichwe are concerned in this case. They deal with the question of theoccasion on which the powers of review given by the Indian Code of CivilProcedure will or will not be exercised.
The power by way of revision conferred on the Supreme Court of Ceylonby sections 21 and 40 of the Courts Ordinance (Vol. I., page 25) and bysection 753 of the Civil Procedure Code (Vol. II., page 428) are very wideindeed, and clearly this Court has the right to revise any order made byan original Court whether an appeal has been taken against that order ornot. Doubtless that right will be exercised in a case in which an appealis already pending only in exceptional circumstances. For instance thisjurisdiction will be exercised in order to ensure that the decision .given onappeal is not rendered nugatory.
SOERTSZ J.—Atvkorulc v. Sarnyralkun.
In a matter similar to the present application, namely, in the matter ofan application to stay execution in D. C. Chilaw, 5,502, Shaw andde Sampayo JJ. held that “ this Court would have jurisdiction to stayexecution so that the decision of the appeal in this Court should not berendered nugatory
In my opinion the preliminary objection must be overruled. In regardto the merits of the application it is desirable not to say too much in viewof the fact that there is an appeal pending from the decision given by thetrial Judge on the question of the rights of the plaintiff and of thedefendant in respect of the land in question in this case. On this appli-cation made to us to stay the execution of the writ allowed by the trialJudge, it is sufficient, I think, to say that so far as the writ which the Judgehas ordered to issue directs that the plaintiff be placed in possession of thelots decreed to him, it was open to the petitioner to take steps undersection 761 of the Civil Procedure Code or if he failed to do that, to ask forsecurity under section 763. He neglected to avail himself of thoseprovisions and his present pica that irreparable loss will accrue to him bythe plaintiff being put in possession is not very convincing. In the caseI have already referred to, Shaw J. said, “ this action was broughtclaiming declaration of title to a building used as a Baptist Meeting House,and judgment had been given for plaintiff for declaration of title andejectment. No loss will be suffered by the defendants, even if they winthe appeal on the merits should they be prevented from using the buildingpending the appeal. Should they succeed they will be again placed inpossession of the building. Those remarks are applicable to the factsof this case.
Counsel for the petitioner argued very strongly that the decree did notdirect that the defendant be ejected from and the plaintiff be put inpossession of the lots the plaintiff was declared entitled to.' That wouldappear to be so according to the copy of the decree typed to us, but thereis the fact that the trial Judge orders in the decree that the defendantspay to the plaintiff damages at a certain rate per mensem till the plaintiffis restored to possession.
In his judgment he says, “ the defendant will have to pay to theplaintiff as damages Rs. 2,000 with further damages at Rs. 150 a monthtill he (plaintiff) is restored to possession of the land decreed tohim
If the decree, as entered,' is inadequate in that it does not specificallyprovide for ejectment of the one and restoration of premises to the otherit may perhaps mean an application to amend the decree to bring it intoconformity with the judgment.
I would also point out in this connection that Counsel did not take thisobjection when he opposed execution before the trial Judge. I musttherefore refuse this application so far as it relates to the placing of theplaintiff in possession of the lots decreed to him.
In regard to the issue of the writ for the recovery of the damagesawarded to the plaintiff there is the matter of the compensation- forimprovements made by the defendant. If the defendant is entitled torecover the sum of Rs. 17,500 from the plaintiff on account of compen-sation there is section 346 of the Civil Procedure Code to be considered
SOERTSZ J.—Attikorale v. Sam-ynathan.
and I think it best that the issue of the writ for the recovery of damagesbe stayed, pending the hearing of these appeals. The petitioner will paythe respondent half the costs of this application.
Owing to a misunderstanding of the order made by us when we allowedsubstituted service of notice, Mr. Pinto, plaintiff’s proctor, was alsonoticed to appear. We had directed that substituted service should beeffected by the notice being affixed to the door of the plaintiff’s last knownresidence, and also by a copy of it being served on the plaintiff’s proctor.The petitioner’s proctor should have seen to it that the notice went outin accordance with the directions given. I therefore order the petitionerto pay Rs. 31.50 as costs incurred by Mr. Pinto.
Moseley J.—I agree.
ATUKORALE v. SAMYNATHAN