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Present: Mr. Justice Wood Benton and Mr. Justice Wendt. *90s'
THE ATTORNEY-GENERAL v. PERERA.
D. C., Colombo, 24,032.
Appeal to the Privy Council—Stay of execution—Powers of SupremeCourt—.Jurisdiction of District Court—Courts Ordinance (No. 1 of1889), s. 42—Civil Procedure Code, ss. 761-764, 777.
Where, after an appeal, proceedings are taken by a party with aview to appealing to His Majesty in Council, the proper Court toentertain an application for stay of execution pending such proceed-ings is the District Court, and not the Supreme Court.
HIS was an application to the Supreme Court to stay executionin a case in which proceedings were taken to appeal to His
Majesty in Council.
H. J. G. Pereira, for the applicant.
Walter Pereira, K.G., S.-G., for the Crown.
Gur. adv. vvlt.
September 15, 1908. Wood Renton J.—
I do not think that we have any power, under the law as it stands,to stay the execution of a decree in such a case as this. The “ Court.”referred to in sections 761-764 of the Civil Procedure Code is, itappears to me, the Court of original jurisdiction. The clause insection 763, to which Wendt J. referred in the argument, and whichspeaks of security being given for “ the due performance of the decreeor order of the Supreme Court,” points in this direction. Mr.H. J. C. Pereira relied on a two-fold argument.
In the first.place, he contended that, after the allowance of thisCourt of a certificate to have its judgment in the present case broughtup in review, prior to an appeal to the Privy Council, the wholeproceedings, preparatory to the hearing in review, were convertedinto something in the nature of an appeal, although not an appeal inthe strict sense of the term. Where, therefore, as here, the SupremeCourt had set aside the decree of the Court of original jurisdiction and“ passed a decree ” of its own, the party who sought to bring up thatdecree in revision was entitled, by the very terms of section 761 of theCivil Procedure Code, to apply to the Supreme Court as the Courtpassing the decree for a stay of execution. This- argument admits,in my opinion, of several answers. We are precluded by the decisionof a Bench of two Judges in the case of Cassim Lebbe Marikar v.Saraye Lebbe1 —a decision justified by the language of the Code and
(1894) 3 C. L. R. 61.
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1908.^ the Courts Ordinance—from holding that the jyoceedings prepara-September 16. tory to a hearing in review are an appeal. Again, in view of theWood provisions in section 777 of the Code of Civil Procedure and sectionRenton J. jq 0f Qourts Ordinance (and c/., Justice v. Mersey Steel Co.,1) thedecree of the Supreme Court either affirming or, reversing that of theCourt of original jurisdiction, beoomes the decree of the latter Court.On both these grounds section 761 is applicable.
Mr. Pereira’s second point was. that, in any event, under section42 of the Courts Ordinance, which saves the right of appeal to theKing in Council against “ any final judgment, decree, or sentence,”the decree of the Supreme Court in this case, whether it is to beregarded as that of the Supreme Court or. as that of the Court oforiginal jurisdiction, is an “appealable deoree,” and that, therefore, -under section 761 of the Code, its execution can be stayed. Butsection 42 of the Courts.Ordinance does not say that the final decree,to which it refers, is an “appealable decree.” On the contrary, itclearly indicates (see clause 3) that the only “ appealable decree” isthe decree iii review. All that the saving clause in section 42 doesis to enact in effect that machinery will be provided by which a finaldecree may be got rid of on appeal to the Privy Council. Thismachinery is to be found in the clauses following the saving clause,and one of these expressly provides that it is from the decree inreview that the appeal to the Privy Council must be taken. I thinkthat Mr. Pereira’s second point fails.
. 1 would dismiss the application with costs.
This is an application by the defendant in the action for a stay ofthe execution of the decree pending his appeal to the Privy Council.The decree in question is a decree of this Court, whereby theplain tig’s appeal against a dismissal of his action by the DistrictCourt was allowed and defendant condemned to pay him a sum ofRh. 23,944• 64. This decree was dated June 9,1908, and within twomonths of that date the defendant applied for a certificate undersection 781 of the Civil Procedure Code with the view of appealingto the Privy Council. The certificate was granted on August 4,security for costs of the review hearing has been given, and the casenow awaits hearing accordingly. On August 17, 1908, the plaintiffapplied ex parte for, and obtained from, the District Court a writ ofexecution against the defendant’s property for the recovery of theamount decreed, and the present petition, supported by affidavit,was presented to us on August 21. As grounds for the applicationthe petition alleges (paragraph 7) that “ By the execution beingenforced during the pendency of the appeal, the heirs of the deceaseddefendant, one of whom is a minor, will suffer irreparable loss, to
' (1876) 1 C. P. D. 576.
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prevent which the petitioner is prepared, if required, to offer *1908.adequate security to the plaintiff to meet his claim in the event of September IS.the action being decided against him. in appeal.”Wendt j
Petitioners’ counsel, in view of section 76 of “Tho CourtsOrdinance,” 1889, and section 777 of the Civil Procedure Code,w as forced to admit that the District Court was the proper Court toexecute the decree. The former section enacts that the execution shallbe carried out “ in like manner as any original judgment, order, ordecree pronounced by the said District Courts could or might havebeen executed;” while section 777 directs the District Court to“ proceed to execute the decree passed in appeal, according to therules heretofore prescribed for the execution decrees in an action.”
Clearly a Court has power in a proper case to stay execution of itsown decree, and in my opinion it has the same power ovfer a decreepassed in an appeal against its own decree. The present applicationought therefore to have been made to the District Court of Colombo,and I think the petition should be dismissed with costs.
On the assumption that the application was properly presented tothis Court, counsel sought to bring the case within Chapter LIX. ofthe Code. I am doubtful whether that chapter is applicable to thecase at all. Its primary application, at any rate, is to appeals frominferior Courts to the Supreme Court, and the argument for makingit govern appeals to the Privy Council must rest solely on the factthat there is no other express provision relating to the execution of adecree at the stage at which this case has arrived. Supposing thechapter applies, it has been held that proceedings to obtain a hearingin review' do not amount to an “ appeal ” (Gassim Lebbe Marikar v.
Saraye Lebbel), and I think that ruling right. It is clear from section42 (thirdly) of the Courts Ordinance and section 783 of the Codethat the “ appeal ” allowed to an unsuccessful party is against thejudgment of this Court in review only. In the present case therecan as yet be no appeal to the Privy Council.
1 (1894) 3 C. L. R. til.
THE ATTORNEY-GENERAL v. PERERA