Vetharna.nicka.Tn v. Davoodbhoy
1962Present : T. S Fernando, J.V. H. D. VETH AMANICKAM, Petitioner, and C. A. DAVOODBHOY,Respondent5. G. 548—Application in Revision in C. R. Colombo, 77,712
Appeal—Tenancy action in respect of rent-controlled premises—Decree entered forejectment of tenant—Condition that writ shall not issue for some time—Applicationfor stay of execution of unit pending appeal—Computation of time limit—Application for execution of decree pending appeal—Discretion of Court torefuse such application—Civil Procedure Code, ss. 761, 763.
A tenant who seeks, pending appeal, a stay of execution of decree enteredagainst him for ejectment must, under section 761 of the Civil Procedure Code,make his application before the expiry of the time allowed for appealing againstthe decreo, notwithstanding that the decree contains a direction that writ ofejectment shall not issue till a specified date has expired. The circumstancethat the decree has directed that writ of ejectment shall not issue for a certainperiod cannot have the effect of extending the time limited by section 761.
T. S. FERNANDO, J.—Vethamanickam v. Davoodbhoy
When a judgment-creditor makes application under section 763 of the CivilProcedure Code for execution of decree pending appeal, the existence of a validapplication for a stay of execution is not the only circumstance that can betaken into account by the Court as militating against the issue of writ ofexecution.
Where a tenant of rent-controlled premises prefers an appeal to the SupremeCourt against a decree for ejectment entered against him, it is competent for theCourt to refuse the landlord’s application for execution of decree having regardto the difficulty of restoring the tenant to occupation of the premises in the eventof the appeal being successful.
j^LPPLICATION to revise an order of the Court of Requests, Colombo.Siva Rajaratnam, for the defendant-petitioner.
W.D. Gunasekera, for the plaintiff-respondent.
Cur. adv. vult.
March 12, 1962. T. S. Fernando, J.—
The plaintiff in C. R. Colombo Case No. 77,712 successfully sued thedefendant, his tenant, for ejectment of the latter from premises No. 281/1,Galle Road, Wellawatte. Judgment in his favour was delivered by thelearned Commissioner on 29th June 1961, and within the appealableperiod the defendant preferred an appeal to the Supreme Court againstthe judgment which had ordered his ejectment. By that same judgmentthe Commissioner had directed that writ of ejectment shall not issuetill 30th September 1961.
On 29th September 1961 the defendant applied to the Court of Requestsfor a stay of execution of the decree, and notice of this application wasdirected to be served on the plaintiff and thereafter inquiry was to takeplace on 14th November 1961. Meanwhile the plaintiff himself appliedfor execution of decree pending appeal, but failed to make the defendanta party respondent to his application. Both applications appear tohave been taken up for inquiry on 14th November 1961 in the presenceof counsel and proctor for both parties and, after hearing argument, thelearned Commissioner reserved his order for 21st November 1961 onwhich day he allowed the application of the plaintiff for execution ofdecree. The defendant thereupon on the same day, with notice to theplaintiff, applied for a vacation of that order and an interim order stayingexecution of decree pending'the disposal of his latest application. Thelearned Commissioner by his order made on 4th December 1961 dis-missed the defendant’s application of 21st November and refused astay of execution.
The application to this Court is designed really to canvass the correct-ness of the order of the Commissioner made on 21st November 1961allowing the application for execution of decree. Counsel for the
T. S- FERNANDO, J.—Vethamanickam v. Davoodbhoy
defendant-petitioner first contended that the plaintiff’s application forexecution of decree should not have been entertained because of hisfailure to comply with the imperative terms of section 763 of the CivilProcedure Code which require the defendant to have been made a partyto the application. The omission on the part of the plaintiff is conceded,as indeed is the defect in the application. As, however, the defendanthad notice of the nature of the application by the time the inquiry tookplace on 14th November and as he was represented at that inquiry, I amunable to hold with the defendant-petitioner on this first contention.
Learned counsel for the plaintiff-respondent argued before me that anapplication for stay of execution can be made under our law only asprovided for by section 761 of the Civil Procedure Code which requiresthat such an application be made before the expiry of the time allowedfor appealing from the decree. He contended that as the defendantfailed to make the application in time the Court is powerless to grant theapplication. The circumstance that the decree directed that writ ofejectment shall not issue till 30th September 1961, it was argued, cannothave the effect of extending the time limited by section 761. I thinkthis contention is a sound one, although I find myself unable to agreewith the further contention of counsel that the only circumstance thatcan validly be taken into account by a Court as militating against anissue of writ of execution on application made under section 763 is theexistence of a valid application for a stay of execution made in terms ofsection 761. The purpose of making a judgment-debtor a party res-pondent to an application under section 763 is to enable him to showcause against a granting of it. If all that a judgment-debtor can bepermitted to show by way of cause is that he has made an applicationunder section 761,1 venture to think that the Court is in as good a positionas the judgment-debtor for acquainting itself on the point whether anapplication under section 761 has been made. I think the Court has awider discretion in exercising its powers under section 763 than counselis willing to concede. What kind of security a landlord can offer willcompensate a tenant ejected from rent-controlled premises in the eventof the Supreme Court in appeal holding against the landlord and refusingejectment ? The most law-abiding landlord who has ejected one tenantand rented his premises to another may find himself physically and legallyincapable of ejecting the new tenant so that he may comply with theorder of the court of appeal. I am of opinion that, having regard to thenature of the suit and the relief available to a successful tenant-applicant,the learned Commissioner should have refused the landlord’s applicationmade for execution of decree.
I set aside the orders of the Court of Requests made on 21st November1961 and 4th December 1961.
There will be no costs of the application to this Court.
V. H. D. VETHAMANICKAM, Petitioner, and C. A. DAVOODBHOY, Resspondent