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Present : Schneider J.
SILVA v. WATTUHAMY.
260—C. B. Matara, 11,137Decree- that no damages'. are to he paid if defendcmt allows a cart trackwithin three months of the date of the decree—Appeal to SupremeCourt—Appeal dismissed—Is period of three months to be countedfrom date of Supreme Court judgment*
The judgment of the Commissioner of Bequests ordered thedefendant to pay damages -at- the rate of Bs. 10 a month, butdirected no damages was to be paid if the" defendant within threemonths of the decree allowed or 'provided a cart track. Thedefendant appealed, and the Supreme Court affirmed the judgment.'
Held, that the three months must be reckoned from the dateof the decree of the Court of Bequests, and not from the date ofdecree of the Supreme Court.
1 Ram. Rep. 1863—68, p. 226.
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rpHE facts are set out in tile judgment.
M. W. H. de Silva, for appellant.
H. V. Per era, for respondent.
November 1, 1922. Schneider J.—
On a writ issued in this case a sum of Rs. 300 was included byway- of damages. The judgment and decree of the Commissioner,I think, clearly indicates that Rs. 10 damages a month should bepaid as from the date of his decree till restoration, but that eventhis damages was not to be paid if, as directed by him, the defendantwould within three months of the date of the decree allow or providea cart track. There was an appeal to this Court from the decreeof the Commissioner, and this Court affirmed that decree. Itappears to have been contended upon an application for the recallof. the writ that the period of three months must be reckoned asfrom the date of the decree of this Court affirming the decree /ofthat Court. This contention was sought to be supported byreference to the case of Oasaim Lebbe Marikar v. Surayi Lebbe 1 andthe Attorney-General v. Perera 2. None of those are actually in point.There is an expression of opinion by one of the Judges who tookpart in one of the cases that an appeal,' ipso facto, suspends decree.This seems to be a startling proposition. For section 761, chapterlilX., of the Civil Procedure Code, expressly enacts: —
Execution of a decree shall not be stayed by reason only of anappeal having been preferred against the decree; but, ifany application be made for stay of an appealable decreebefore the expiry of the time allowed for'appealing there-from, the Court which passed the decree may for sufficientcause order the execution to be stayed."
This view of the law appears to have been accepted as correct in
the case of Arunaaalem v. Somasunderam. 3•
I would, * therefore, hold that the date of the decree in this caseis the date of the decree of the lower Court. All that was done inappeal was to affirm that decree.' Therefore by virtue of theSupreme Court judgment that decree bfecame final as from its owndate. I would therefore dismiss the appeal, with costs.v
13C.W. R, 62.• (2966) 12 N. L. B. 25.* (1918) 20 N, L. B. 821,
SILVA v. WATTUHAMY