Baddegama Piyaratana Nay aka Thero v.
Vagisvarachariya Morontuduwe Sri Naneswara Dhammananda Thero
Present: Gnnasekara, J., and Sansoni, J.THE VENERABLE BADDEGAMA PIYARATANA NAYAKA
THERO, Petitioner, and THE VENERABLE VAGISVARACHARIYA
MORONTUDUWE SRI NANESWARA DHAMMANANDA THERO
et at., Respondents
S. C. 93—Application under Buie 7 of the Buies in the Schedule to theAppeals (Privy Count4) Ordinance in respect of 26 D. C. Colombo,
Privy Council—Execution pending appeal thereto—Decree “ to pay money or performa duly ”—Does it include an order of ejectment from immovable properly ?—Appeals (Privy Council) Ordinance (Cap. 85), Schedule, Buies 1, 8, 9.
In an action where the subject matter consisted of certain immovable pro-perty, the judgment declared the plaintiff to be entitled to the possessionof that property as the trustee of a oharitable trust and ordered the defendantto be ejected therefrom.
GUNASEKARA, J.—Baddegama Piyaratana Nay aka Thero v.
Vagisvarachariya Morontuduwe Sri Naneswara Dhammananda Thero
Held, that it was open to the Court, when granting to the defendant leave toappeal to the Privy Council, to direct in terms of Rule 7 of the Schedule to the* Appeals (Privy Council) Ordinance that the judgment should be carried intoexecution. In such a case, it could not be contended that the judgment wasnot one that required the appellant “ to pay money or perform a duty ", Rules7 and 8 of the Schedule should be read in conjunction with Rule 9.
Held further, that the Court had power to make an order in terms of Rule 7even after it had already granted leave to appeal.
Application under Rule 7 of the Schedule to the Appeals (PrivyCouncil) Ordinance.
B. Wikmmanayake, Q.C., with II. A. Koattegoda, for the plaintiff-petitioner.
W. Jayewardene, Q.G., with P. Ranasingfie, for the 1st defendant-respondent.
H. A. Koattegoda, for the 3rd, 5th, 7th, 8th-10th, 12th, 13th, 17th18th and 20th-22nd defendants-respondent.
Cur. adv. vult.
May 30,1958. Gtjnasekaba, J.—
At the close of the hearing of this application we refused it with costsand said that we would give our reasons later.
The 1st respondent had been granted final leave to appeal from ajudgment of this court, dismissing an appeal by him from a judgmentof the District Court of Colombo in an action brought against him by thepetitioner, and the. petitioner by his application sought an order underrule 7 of the Rules in the Schedule to the Appeals (Privy Council)Ordinance (Cap. 85) directing that the judgment should be carried intoexecution.
Rule 7 is in these terms:
“ Where the judgment appealed from requires the appellant to paymoney or perform a duty, the Court shall have power, when grantingleave to appeal, to direct that the said judgment shall be carried intoexecution if the person in whose favour it was given shall, before theexecution thereof, enter into good and sufficient security, to the satis-faction of the Court, for the due performance of such order as HisMajesty in Council shajl think fit to make thereon. ”
Rule 8 contains a proviso “ that if the appellant shall establish to thesatisfaction of the Court that real and substantial justice requires that,pending such appeal, execution should ba stayed, the Court may order the
GTJNASEKARA, J.—BaddegaitM Piyaratana Nay aka Thero
v. Vagisvarachariya Morontuduwe Sri Naneswara Dhammananda Thero
execution of such judgment to be stayed if the appellant shall givesufficient security for the due performance of such order as His Majestyin Council shall think fit to make thereon. ” Mr. Jayawardene, whoappeared for the 1st respondent, took a preliminary objection to theapplication on two grounds: first, that the judgment is not one thatrequires the appellant to pay money or perform a duty and, secondly,that the court has no power to make an order in terms of rule 7 after ithas granted leave to appeal.
The case is one in which the subject of litigation consists of certainimmovable property, and the judgment declares the petitioner to beentitled to the possession of that property as the trustee of a charitabletrust and orders the 1st respondent to be ejected therefrom. A consi-deration of the provisions of rule 9 makes it clear that rules 7 and 8 applyto such a judgment: for rule 9 provides for the amount of the securitythat must be demanded from a party for the performance of the judgmentto be pronounced upon the appeal in any case where the subject oflitigation consists of immovable property and the judgment appealedfrom relates to the occupation of such property. Therefore there is nosubstance in the first ground on which the preliminary objection was based.
The validity of second ground depends on the effect to be given to theexpression “ when granting leave to appeal ”. Mr. Jayawardene’s con-tention is that the power given to the court to decide that the judgmentshall be carried into execution is one that can be exercised only at thetime when it grants the leave and not afterwards. But what is indicatedby the words in question appears to be the time when the court gets thepower and not the time when it may be exercised: the phrase “ whengranting leave to appeal ” must be read as qualifying “ shall have ”and not “ to direct ”.
For these reasons we decided that the preliminary objection must be,overruled.
The petitioner and the 1st respondent are both of them eminentBuddhist monks. The former claimed a right to have possession of theproperty upon the footing that he was the duly appointed principal of aBuddhist teaching institution known as the Vidyodaya Pirivena andthat the property formed a part of the premises on which the Pirivenastood. The 1st respondent alleged that it belonged to a Buddhist templeknown as the Maligakanda temple and that he was the viharadhipati ofthat temple and was in that capacity entitled to have possession of it.The action was instituted on the 26th July 1943, and the 1st respondenthas been in occupation of the property from a time long prior to that day.Upon the material that was placed before us we were not satisfied thatthere was sufficient ground for causing him to be ejected from thisproperty before the decision of his appeal to Her Majesty in Council.
Sansoni, J.—I agree.
THE VENERABLE BADDEGAMA PIYARATNA NAYAKA THERO, Petitioner, and THE VENERABLE