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Present; Ennis and Porter JJ.KALID v. PACKEER.
292—D. C. Colombo,
Judgment directing that if defendant did not pay money within onemonth plaintiff should have possession of land—Appeal by defend-ant—Appeal dismissed—Money deposited within one month ofreceipt of record in District Court after appeal.
By judgment dated May, 1922, defendant was given one monthwithin which to pay a certain sum; failing that plaintiff was toobtain possession of a land. The defendant appealed, and hisappeal was dismissed on February 16, 1923. The judgment inappeal made no mention of time.
The record was received back in the District Court on February28. On March, 23 the defendant deposited in the Kachcheri theamount mentioned in the decree, and on March 28 the Kachcherireceipt was produced before Court.
Held, that' In' the circumstances the payment was in time, andthat plaintiff was not entitled to a writ of possession as if defendanthad made default of payment.
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** It has hitherto been the rule of the Supreme Court to specifyin its decree that the time shall run from the date after the appealand after the receipt of the record by the District Court. Itunfortunately was not done in this case. But it has been such aninvariable practice that it would seem desirable that it shouldbecome a practice under section 4 of the Civil Procedure Code.**
TTHE facts are set out in the judgment.
Hayley (with him Cooray), for the appellant.
H. H. Bartholomeuaz (with him B. L. Bartholomeusz), for therespondent.
February 18, 1924. Ennis J.—
This is an appeal from an order refusing to recall a writ of posses-sion. It appears that on May 9, 1922, by a judgment of the DistrictCourt, the defendant-appellant was given one month within whichto pay a certain sum; failing that, the plaintiff was to obtain posses-sion of the land. The defendant appealed, and his appeal wasdismissed on February 16, 1928. The judgment in appeal madeno mention of time. On*March 19 the plaintiff applied for execu-tion of his decree, and on March 20 and 28 writs of possession issued.On March 23 the defendant deposited in the Kachcheri the amountmentioned in the decree, and on March 28 the Kachcheri receiptwas produced before the District Judge. The question then aroseas to whether this payment was in' time. The learned Judge decidedto follow certain Indian cases, and he held that the month wouldrun from the .date of the decree in appeal, and inasmuch as theplaintiff had not been paid within that date, he refused to recall thewrits issued at the instance of the plaintiff. The appeal is fromthis order. It seems that there is no definite procedure for a casesuch as this. Section 777 of the Code says that ” When a partyentitled to any benefit under a decree passed in an appeal desiresto obtain execution of the same, be should apply to the Court whichpassed the decree against which the appeal was preferred ; and suchCourt shall proceed to execute the decree passed in appeal.” Theonly other provision of the Code which has any bearing* on thisquestion is section 4, which says that 44 In every case in which noprovision is made by this Ordinance, the procedure and practicehitherto in force shall be followed, and if any matter or procedureor practice for which no such provision is made by this Ordinanceor by any law for the time being in force shall after this Ordinancecomes into operation arise before any Court, such Court shallthereupon make application to the Supreme Court for, and theSupreme Court shall and is hereby required to give, such specialorders and directions thereupon as the justice of the case shallrequire.” The Indian cases which the learned Judge followed
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do not appear to be in point. They merely say that the judgmentin appeal is deemed the judgment of the lower Court. In thesecases the payment was made within the time counted from thedecree in appeal, and ho case was cited where a tender of paymentwas made after that time. These cases, therefore, do not directlyapply to the present case. It has hitherto been the rule of theSupreme Court to specify in its decree that the time shall run fromthe date after the appeal and after the receipt of the record bythe District Court. It unfortunately was not done in this case.But it has been such an invariable practice that it would seemdesirable that it should become a practice under section 4 of theCivil Procedure Code. In the present case, the record was receivedback by the District Court on February 27 or 28 (the dateis blurred in the record). In these circumstances it would seemthat. the defendant tendered payment within the month from thedate when the record was received back by the District Court. Inthe circumstances I would hold that the payment was in time, andaccordingly allow the appeal,, but make no order as to costs in bothCourts.
Porter J.— I agree.
KALID v. PACKEER