VYT HI ALIN GA M, J.—Silva v. Amerasinghe
1975 Present: Perera, J. Ismail, J., and Vythialingam. J.K. H. SILVA, Respondent-Petitioner, and M. Amerasinghe,
Conciliation Boards Act—Section 13—Settlement—Execution as decreeof Court—Applicability of provisions in Civil Procedure Code—Duty of Court to notice party affected—Inquiry into objections—Administration of Justice Law, Sections 317, 318, 325, 328, 356—Restoration to possession pending inquiry de novo.
In an application under Section 13 of the Conciliation Boards
Act, No. 10, of 1958 for the execution as a decree of theCourt, of a" settlement alleged to have been entered intobetween the parties before the Concilia ion Board, it xsthe duty of the Court (a) to notice the party affected bythe settlement sought to be enforced ; (b) to inquire intoany objections which such party is by law permitted to take.
“ Thus, unlike in the case of' Section 57 of the Estate DutyOrdinance and section 84 (3) of the Income Tax Ordinancewhich make only Sections 226 to 297 of the Civil ProcedureCode applicable, the Sec don 13 (2) of the ConciliationBoards Ordinance makes the whole of the provisionsincluding the important provisions in Section 224 and 225applicable to execution of settlements arrived at under ihatOrdinance.”
Section 328 of the Administra'ion of Justice Law No. 44 of
1973 has not taken away the discretion of the trial judgeto allow an application for stay of execution even pendingapplication to the Supreme Court for leave to appeal.
May 6, 1975. Vythialingam, j.—
The Petitioner-Respondent applied in terms of Section 13 (2)of the Conciliation Boards Act No. 10 of 1958 for the executionas a decree of the Court, of a settlement alleged to have beenentered into between the parties before the Conciliation Board.The Respondent-Petitioner objected to the issue of Writ on theground inter alia that he had not consented to deliver vacantpossession as Stated by the Petitioner-Respondent. On one of thedates fixed for inquiry, 12.2.1975, the Respondent-Petitionermoved for a date on the ground that his proctor was dead. Thetrial judge refused the application and directed that writ be
S. C. 129/1975—D. C. Mount Lavinia 74/C. B.Application in Revision
A PPLICATION in Revision
from an Order of the District
Court Mount Lavinia.
N. R. M. Daluwatte for the petitioner.R. de Silva for the respondent.
Cur. adv. vult.
VYTHIALiNGAM, J.—&ilva v. Amerasinghe
On the very same date the attorney for Petitioner-Respondentapplied for the issue of writ of possession and writ was signed.A later journal entry of the same date shows that notice ofappeal was given and attorney for the Respondent-Petitionerprayed for the stay of execution and he was directed to supporthis application. This was done, again on the very same day. TheRespondent-Petitioner was present in person and the Petitionerrespondent was represented by Mr. Romesh de Silva, whoobjected to the stay of execution on the ground that the appealwas against an order and prior leave to appeal had not beenobtained from this Court.
The trial judge upheld the objection and issued the writ. Onthe follov'ing day at 11.30 a.m. the Respondent-Petitioner wasejected by the Fiscal from the premises, and he has come tothis Court by way of revision praying that the order of 12.2.75be set aside and that he be restored to possession. In these dayswhen there are so many complaints against the delays in Courtsit is refreshing to find that proceedings in Courts are beingdisposed of at such lightening speed. But as Gratiaen, J. pointedout in Rev. Sangarakitta Thero vs. Inspector of Police, Peliya-
goda (39 C.L.W. 61) “ there is I think a pace at which
and beyond which the dispensation of justice becomes impossibleof achievement. The fundamental rights of even litigants shouldnot be sacrificed for speed alone. One of those rights is the rightnot to be condemned unheard.” Quite naturally the instant caseis teeming with irregularities.
Before I go on to consider these irregularities I wculd liketo advert to one matter a consideration of which would normallyhave disentitled the Respondent-Petitioner from any relief fromthis Court in revision proceedings in which this Court has adiscretionary power. In his petition dated 21.2.1975 the Respon-dent-Petitioner states that the Petitioner-Respondent applied toenforce an alleged agreement made before the ConciliationBoard (para. 1) and denied that he consented to deliver vacantpossession of the house (para. 3). In para. 4 the Respondent-Petitioner sets out that “ This Respondent-Petitioner annexedhereto certificates from the said Conciliation Board dated 13.5.73marked (P3). There is nothing in this certificate to show thatthe Respondent-Petitioner had consented to vacate the house on31.3.1974 as alleged by the Petitioner-Respondent. It only refersto the payment of arrears of rent and as to how the furtherrents were to be paid. ”
But this certificate (P3) was not the certificate relied on bythe Petitioner-Respondent and filed by her along with the plaint,which was a certificate dated 31.5.73. This certificate was
VYTHIALINGAM, J.—Silva v. Amerasinghe,53.9
produced marked R2 and filed in this Court along with-heyobjections by the Petitioner-Respondent. This certificate R2 date,<l31. 5. 1973 refers to proceedings on 11. 3. 1973 and 13. 5. ,1973and sets out that “ the respondent undertook…. to deliver vacanjtpossession of the house on the 31st day of March 1974 unto ;thpplaintiff.” So that by filing the proceedings of the wrong datpthe Respondent-Petitioner either deliberately or unwittingly Jp.a,cJtried to mislead Court. A person who seeks the exercise by thipCourt of its discretionary power must make a full and .fjrviedisclosure of all relevant facts. However, in the circumstancesof this case I do not wish to penalise the Respondent-Petitionerfor this default on his part……. . ■ §
On a consideration of the two certificates P3 and R2 it is< atthe least doubtful as to what was agreed between the parties.P3 states that the dispute “ was inquired into by the Board onthe 13th day of May 1973 and was settled on the following! terms :“ The terms being ” and then the terms are set out. Obviouslythe par+ies were present on that date, for the certificate goes opto say that the respondent “ pays the said amount (i.e. the arrearsof rent) to the complainant now,” and that “ The complainantpromises now to effect the repairs to the house as agreed uponthe last date of inquiry. ” Then follows the agreement to pay therent for April on or before the 18th May and thereafter on orbefore the 10th of each month.
Apparently P3 contains the proceedings of 13th May and theterms of the settlement arrived at on that date. R2 with transla-tion R2A purports to be the certificate under section 12 and isdated 31st May 1973. Apparently there were no proceedihgsbefore the Board on that date. The wording of the certificateR2A also shows that there could not have been any proceedingson that for it merely recites what parties had agreed to earlier,and is all in the past tense. Indeed there was no need for anyfurther proceedings on the 31st May 1973 as a settlement hadalready been arrived at earlier. The certificate R2 contains twomatters not referred to in P3. The first is that the Respondent-Petitioner undertook to deliver vacant possession of the houseon the 31st March, 1974 and that he further promised to withdrawa complaint he had at that time made to the Rent Control Board.
The certificate R2 refers to an inquiry held on 11.3.73 as well,but P3 makes no reference to it. The proceedings of 11. 3.; 1973are not before us and it is not possible for us to say what happenedon that day. P3 however states that the complaint of the petitioner-Respondent was inquired into on that date, i.e. the complaintfor the recovery of arrears of rent and for ejectment and thatit was settled on the terms set out. Prima Facie therefore me
VYTHIALXNGrAM J.—Silva v. Amerasinghe
certificate R2 does not correctly embody the terms of the settle-ment arrived at between the parties. If there was any agreementarrived at earlier on 11.3.1973 and the probabilities are thatthere was, then it was for the Petitioner-Respondent to have setout what the terms were and to have filed a certified copy ofthose proceedings to show that the certificate R2 correctly setsout what was agreed between the parties. However, the Peti-tioner-Respondent did not file P3 in the lower Court and the trialjudge would not have been aware of the discrepancy between P3and the certificate R2. In these circumstances an inquiry wasessential in order that court.could satisfy itself that the Petitioner-Respondent was entitled to obtain execution of the decree.
Mr. Romesh de Silva who appeared for the Petitioner-Respondent submitted that as the District Court in this case wasmerely a court of execution it could not go behind the certificateissued by the Chairman of the Conciliation Board but was boundto issue writ. Indeed he went so far as to submit that the courtwas wrong in issuing notice on the Respondent-Petitioner andfixing the matter for inquiry on objections being filed. I do notagree. Under subsection 2 of Section 13 of the Conciliation BoardsAct No. 10 of 1958 where a settlement has not been repudiatedas provided in subsection 1 it is the duty of the Chairman of theBoard to forward to the appropriate Court a copy of the settle-ment within thirty days after the date of settlement. In theinstant case the Chairman of the Conciliation Board did not doso. He only forwarded the certificate on the 26 Ti April 1974 afew days after the plaint was filed. However I make no point of it.
When such certificate is received the judge should cause suchsettlement to be filed of record and with effect from the date ofsuch filing the settlement should be deemed to be a decree of thatCourt. Thereafter the provisions of the Civil Procedure Codeas relate to the execution of decrees will as far as may bepracticable apply mutatis mutandis to and in relation to suchsettlement wh ch is deemed to be a decree. Thus, unlike in thecase of section 57 of the Estate Duty Ordinance and section84(3) of the Income Tax Ordinance which make only sections226 to 297 of the Civil Procedure Code applicable, the section13 (2) of the Conciliation Boards Ordinance makes the whole ofthe provisions including the important provisions in section 224and 225 applicable to execution of settlements arrived at underthat Ordinance.
Section 224 of the Civil Procedure Code provides how applica-tions for execution have to be made and what particulars it shouldContain. The Petitioner-Respondent did not comply with theprovisions of this section. He merely made application by petitionand affidavit. This procedure, as pointed out by Gratiaen, J. in W.
VYTHIAL INGAM, J.—Silva v. Amercusinghe
Barnes de Silva vs. Galkissa Wattarapola Co-op Stores Society,54 N. L. R. 326 and approved by the Divisional Bench of sevenJudges by a majority of four to three in Bandahamy vs. Sena-nayake 62 N. L. R. 313 would be applicable only where no proce-dure is laid down for making such applications. Here it isexpressly stated that such of the provisions of the Civil Proce-dure Code as relate to the execution of decrees shall, as far asmay be practicable, apply mutatis mutandis to and in relationto such settlements.
When such an application is made it is the duty of court asprovided in section 225 (1) to satisfy itself that the applicationis substantially in conformity with the foregoing directions andthe applicant is entitled to obtain execution of the decree ororder which is the subject of the application. In order to do sothe court is required, if necessary, to refer to the record of thendtion in which the decree or order sought to be executed waspassed. In the case of a decree passed by the court itself therewould be no difficulty in doing so. But where it is called upon toexecute,, as a decree of a court, a settlement arrived at beforean outside tribunal this would not be possible, because therecord would not be before it. So that in such a case it wouldbe necessary to notice the party affected and to inquire into anyobjections which such party is by law permitted to take.
In the case of decrees passed by a court no notice is necessaryto the judgment debtor, when an application for execution ismade for the reason that the court has the entire record beforeit for the purpose of satisfying itself that the judgment creditoris entitled to execute the decree. But even in such a case it hasbeen the inveterate practice of our courts to permit the judgmentdebtor to come in and object to the issue of the writ or to haveit recalled if it has already been issued and to inquire into anysuch objections, although he would not be permitted to challengethe decree itself. Even where no procedure is laid down in regardto applications to execute settlements or awards made by someother tribunal Gratiaen, J. pointed out in Barnes Silva’s case(supra) at page 328 “ . .it is the clear duty of a court of law whosemachinery as a court of execution is invoked to satisfy itself,before allowing writ to issue that the purported decision or awardis prima facie a valid decision or award made by a person dulyauthorised under the Ordinance to determine a d'spute whichhas properly arisen for the decision of an extra judicial tribunalunder the Ordinance. In that event alone would the court bejustified in holding that the decision or award is entitled to recog-nition and capable, under the appropriate rule, of enforcement,as if it were a decree of court. To achieve that end, a personseeking to enforce an award should be required to apply either
VYTHI ALIN QAM, J.—Silva v. Ame rasingha
in a regular action or atleast by petition and affidavit (in proceed-ings by way of summary procedure) setting out facts whichprove tha< the purported award is prima facie entitled to suchrecognition. The court should in the latter event enter an ordernisi or interlocutory order granting the application and noticethereof should be served on the opposite party so that he maybe given an opportunity of showing cause against the proposedenforcement of the award.”
In that case it was held that application in terms of section224 was inappropriate for the enforcement of an extra-judicialdecree or award, which a court is empowered upon proof of itsvalidity to recognise and enforce as if it were a judicial decree.In the instant case section 224 is made applicable by the ordi-nance itself and the proper procedure is to make the applicationas provided for in that section. But because it is an extra-judicialdecree or award and because the court has to be satisfiedthat the applicant is entitled to obtain execution of the decree,the court should issue notice on the judgement debtor. In theinstant case the trial judge did, quite correctly, issue notice onthe respondent petitioner. But he did not hold a due and properinquiry into the objections of the respondent petitioner.
At the inquiry on 12.2.1975 the respondent petitioner movedfor a date on the ground that his Attorney was dead. Thisapplication was refused, and the judge went on to consider onlyone of the objections taken up in the objections filed by therespondent petitioner and made his order to issue writ. It is notclear whether the respondent petitioner was given any opportu-nity at all to participate at the inquiry. In any event the appli-cation for a date on the ground that the respondent petitioner’sattorney was dead should have been allowed.
Under section 28 of the Civil Procedure Code if any proctorwhose proxy has been filed should die then no further proceed-ings should be taken in the action against the party for whomhe appeared until thirty days after notice to appoint anotherproctor has been given to that party either personally or in suchother manner as the court directs. This is an imperative provi-sion and the duty is cast on the court to give notice and to stayproceedings. It is not clear when the attorney for the respondentpetitioner died. But the record and the order made by theDistrict Judge show that he appeared in Court on 13.1.75. Sohe must have died between that date and 12.2.75 and the thirtydays could not have expired on 12.2.75 even assuming that hedied on 13.1.75 and respondent petitioner became aware of it onthat very day itself.
VYTHIAUNGAM, J.—Silva v. Amerasingke
Nor does the fact that these are virtually execution proceedingsand that section 25 applies to a case where the attorney died atany time before judgment, help the petitioner respondent becausethese are fresh proceedings initiated for the first t.me before theCourt. The entire proceedings of 12.275 are on this ground alonecompletely irregular. In his objections the respondent petitionertook up the position inter alia that the house is vested in theCommissioner of National Housing and that the petitioner respon-dent was not entitled to the possession of the house and secondly,that he did not consent to deliver vacant possession. The trialJudge only cons derea the first objection which the respondentpetitioner now concedes was erroneously made by him. The trialJudge did not consider the second objection at all and in viewof the discrepancy between P3 and the certificate R2 it is obvious-ly a very serious objection. This is not to attack the settlementat all but merely to say that the certificate is not in terms of thesettlement. This is one of the matters which the court is requiredby section 225 to satisfy itself before issuing wr.t. The courthas failed to do so. The position would be the same if in thecase of its own decree which is sought to be executed the courtfinds by reference to the record that the decree is not inconformity with the judgment in the case. It would obviouslyrefuse to execute such a decree, because the party would not beentitled to obtain execution of such a decree, until it is in termsof section 189 brought in to conformity with the judgment.
Mr. Silva submitted that the respondent petitioner’s attorneywho died was a partner in a firm of attorneys and his death wouldmake no difference as any other partner could have appearedwithout filing a fresh proxy. The proxy is in a printed form andis in favour of “ Gabriel Rajakaruna Gunawardena,… .Proctorsof the Honourable the Supreme Court of the Island of Ceylonpractising in partnership under the name, style and firm ofGunawardena and Gunawardena Proctors…. ”. Certain nameshad been printed after “ Gunawardena ” and these have all beenscored off. So that either there were no partners at all or theproxy was not in favour of the firm of proctors practising inpartnership. Although it is true that where a proxy is given infavour of a firm of proctors and one of the partners dies duringthe pendency of the action, the surviving partner can continuewithout a fresh proxy—Re Solomon Fernando (27 N. L>. R. 245
B.) yet such is not the case here.
In any event the important fact in the instant case is that eventhough the respondent petitioner moved for a date he was notgiven either the time or the opportunity to make the necessaryarrangements to get one of the other partners to appear assum-ing that the proxy was in favour of the partnership and there
VYTHIALINOAil, J.—Silva v. Amerasinghe
were other partners. The order of the trial judge refusing apostponement on the ground that the respondent petitioner’sproctor had died cannot be allowed to stand and ought to be setaside. So also should the order to issue writ be set aside as it wasmade without giving the respondent petitioner an opportunityto be heard and without an adequate consideration of theobjections filed by him.
The respondent petitioner had been ejected from the premisesin pursuance of the writ and he moves that he be restored topossession. An application to stay writ pending appeal was refusedon the ground that the appeal was aga nst an “ order ” and leaveto appeal had not been obtained from this court. Sub-section 2of section 317 of the Administration of Justice Law, No. 44 of1973, sets out that any person who is dissatisfied with any ordermade by an original Court in the course of any civil Ltigation,proceeding or matter may prefer an appeal from such orderfor any error in law, with the leave of the Supreme Court firsthad and obtained.
Section 328 provides that upon leave to appeal being granted,the Registrar shall so inform the original court. Thereupon unlessthe Judge has otherwise directed, all proceedings in the originalcourt shall be stayed and the said court shall as speedily aspossible forward to the Supreme Court all the papers andproceedings in the case relevant to the matter in issue. Tinereference to the Judge in this section is to the Judge of theSupreme Court and not to the trial Judge, for the words are inthe past tense “ unless the Judge has otherwise directed ”. If itwas a reference to the trial Judge then the words used wouldhave been “ unless the Judge otherwise directs. ” So that thestay of proceedings where leave has been granted is mandatoryunless the Judge of the Supreme Court has otherwise directedwhen granting leave.
But the respondent petitioner did not apply to this Court forleave to appeal. He filed notice of appeal together with Bankreceipt for Rs. 750 for deposit of security for costs of appeal andpostal receipts in proof of posting of notices of appeal on thepetitioner respondent in terms of sectin 318 and moved for stayof further proceedings under section 325.
The trial Judge thought that order made by him on 12.2.75was an “ order ” within the meaning of section 356 and so refusedto stay execution as the respondent petitioner had not obtainedleave from this court. Even if he was correct in treating theorder as an “ order ” he did not consider the question as towhether he had any discretion to stay proceedings in such a casepending the application for leave to appeal.
VYTHIALINGAM, J.—Silva v. Amerasinghe
There is nothing in section 328 to show that this discretion hasbeen taken away from the court. I think that where it is shownthat an application has been made for leave to appeal the courtstill has the power to grant a stay of writ if the circumstances sowarrant it. And what circumstance can more warrant the stay ofwrit than the danger that a tenant who has been in occupation ofpremises for 38 years will be ejected from such premises withthe attendant difficulties in the way of his being restored to posse-ssion if he should succeed in the appeal ? For as T. S. Fernando, J.said in the case of Vellamanickam vs. C. A. Davoodbhoy, (63N.L.R. 54.8) at page 550 “ What kind of security a landlord canoffer will compensate a tenant ejected from rent controlled pre-mises in the event of the Supreme Court in appeal holdingagainst the landlord and refusing ejectment ? The most lawabiding landlord who has ejected one tenant and rented his pre-mises to another may find himself physically and legally incapa-ble of ejecting the new tenant so that he may comply with theorder of the Court of Appeal. I am of opinion that having regardto the nature of the suit and the relief available to a successfultenant applicant the learned Commissioner should have refusedthe landlord’s application made for execution of decree.” In thiscase too the trial Judge should have allowed the application forstay of execution even pending application for leave to appeal.
However, the respondent petitioner has now been ejected fromthe premises in pursuance of a writ which as I have shown waswrongly issued. The question is whether we have the power torestore him to possession pending the inquiry which has now tobe held into the application of the petitioner respondent to ex-ecute the agreement before the Conciliation Board as a decreeof Court. In the case of a void order there is no doubt that aperson who is ejected from premises on such an order can berestored to possession, because such an order is treated as if ithad never been made at all. It was so held in the case of Beatrice)Per era vs. The Commissioner of National Housing (77 N.L.R.361). In that case a tenant had been ejected from premises sheoccupied in pursuance of a writ obtained in the Court of Requestsin an action in which she was the defendant but in which it wasestablished that summons had not been served on her.
Although the Commissioner of Requests held that summons hadnot been served on her and vacated the default judgment and hadgranted the defendant an opportunity to file answer he made noconsequential order in regard to restoration of possession. Thetenant therefore applied to the Commissioner of National Hous-ing and he in terms of his powers under the Protection of Ten-ants (Special Provision) Act, No. 28 of 1970, restored her topossession. This Court held that the Assistant Commissioner ofNational Housing made no error in law in holding that the
VYTHXAL.INGAJVI, J.—Silva v. Ameraeinghe
parte order of ejectment on the basis of which the 3rd respondentwas ejected was the order of a court not competent to make it, asit was void ab initio as summons was not served on the 3rdrespondent.
Dealing with the failure of the Commissioner of Requests him-self to order restoration of possession pending the trial, Tenne-koon, C.J. said at page 363 “ It seems to me that the inherentpowers of the court are wide enough to have enabled the courtto order the plaintiff in that case to vacate the premises and torestore possession to the 3rd respondent, so that the status quoante the institution of the action in the court of Requests mighthave been restored and the action which had now been reinstatedmight proceed ijaeaningfully. See in this connexion the caseSiriniwasa Thero vs. Sudnssi Thero, 63 N.L.R. 31 at 34.”
The position would be the same where this Court sets aside anorder of the lower Court for then there is no longer a valid orderin pursuance of which a party could be dispossessed. In the for-mer case it is void ab initio. In the latter case it is valid till it isset aside and when this has been done a party should restore whathe has obtained by the enforcement of that order. It makes nodifference that there is to be fresh inquiry. As Tennekoon, C J.pointed out (supra) the status quo ante the institution of theaction should be restored so that the inquiry can be proceededwith meaningfully.
In the case of Wickremanayake vs. Simon Appu (76 N.L.R.166) the judgment and the decree of the District Court wereset aside. But in execution of that decree plaintiff had alreadybeen placed in possession of the land. H. N. G. Fernando, C.J.said “ that being so the effect of the decree of the Supreme Courtwas that there "was no longer in existence a valid decree inpursuance of which the plaintiff could properly be placed inpossession of the land. Justice therefore requires that the plaintiffwho had been placed in possession in execution of a decree whichhad turned out to be invalid should no longer be allowed tocontinue in possession of the land Accordingly order was madefor the delivery of possession of the land to the defendants andfor the ejectment of the plaintiff therefrom.
For these reasons I am of the view that the respondent peti-tioner should be restored to the possession of the premises insuit pending the inquiry into the application made by thepetitioner respondent, in view of this it is unnecessary toconsider the further argument addressed to us by Mr. Daluwattethat the order made by the trial judge on 12.2.75 was in factPot an “ order ” but a “ Judgment ” within the meaning ofsection 356 and that therefore his refusal to stay writ wascontrary to the imperative provisions of section 325 (1) andtherefore void.
SHAI-tVANANDA, J.—Sadiria v. Roslin
I therefore set aside the order made on 12.2.75 by the trialJudge to issue writ and direct that the objections of the respon-dent petitioner be inquired into de novo, before another DistrictJudge. I also direct that the respondent petitioner be restoredto possession of the premises in suit pending inquiry and thatthe petitioner respondent and all those holding under him beejected from the premises. The respondent petitioner will beentitled to costs of this application in this Court.
Malcolm Perera, J.—I agreeIsmail., J.—I agree.
Order set aside.
K. H. SILVA, Respondent-Petitioner,and M. Amerasinghe, Petitioner-Respondent