H. N. G. FERNANDO, C.J.—Kodikara v. Cassini91
Present: H. N. G. Fernando, C.J., and Pandita-tGunawardene, J.'
S. K. KODIKARA.. Petitioner, and M. I. M. CAjSSIM, Respondent>S. C. 5S216S—Application for Revision in D. C. GaUeZ^909jLrr^;
Civil Procedure Code—Section 7G1—Application thereunder for stay of execution ofdecree—Duty of Court to consider it though petition of appeal has not beenfiled.
The fact that a petition of appeal has not yot been filed is not a ground forthe refusal of an application made under Section 761 of the Civil Procedure Codefor stay of execution of an appealable decree.
Application to revise an order of the District Court, Galle.
P. P. Gooneiilleke, for the defendant-petitioner.
Percy Karunaralne, for the plaintiff-respondent.
May 3, 1969. H. N. G. Fernando, C.J.—
In this case decree was entered on 7th October 1968 against thedefendant for ejectment from certain premises, and the plaintiff’s proctoralmost immediately after judgment was delivered made an application
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for the execution of the decree and for the issue of a writ of possession.On the same day the proctor for the defendant moved for stay of execution,but the learned District Judge refused to entertain this application onthe ground that a petition of appeal had not yet been filed.
Section 761 of the Code expressly empowers a court to order stay of’execution if an application for stay be made before the expiry of time-allowed for an appeal. Thus the refusal of the Judge to entertain the-defendant’s application denied to the defendant the right which he hadthat the Court should consider and determine his application.
In the result the defendant was ejected from the premises without his-having had the opportunity that the Court should first consider thematters which he might have urged in his application for stay ofexecution.
Wo make order that the District Judge should now consider thedefendant’s application for stay of execution of the decree and make anappropriate order thereon. If the District Judge so decides, the writ ofpossession should be recalled and steps taken requiring the plaintiff to-restore possession to the defendant. The defendant will be entitled to-a sum of Rs. 200 as the costs of this application.
Pandita-Gunawajrdene, J.—I agree.
S. K. KODIKARA, Petitioner, and M. I. M. CASSIM, Respondent