Nachchiduwa v. Mansoor
COURT OF APPEAL.
A. NO. 909/94
C. ANURADHAPURA 12863/LS. N. SILVA, J. (P/CA)
DR. RANARAJA, J„
MARCH 28, 1995.
Civil Procedure – S. 755(3) S. 763 of Amendment Act 79 of 1988 – Petition ofAppeal – Appealable time – Presenting a Petition of Appeal – Date Stamp -Relevant date.
The Petition of Appeal was handed over to the Registrar by the RegisteredAttorney on 02.12.94. The Registrar has placed his initials and entered the time.According to the practice in the Registry, the petition of appeal had to bethereafter taken to the record room where it is entered in the Motion Book andfiled in the record. These steps were not taken on 02.12.94. The relevant entrieswere made on 09.12.94 after the period of 60 days within which the Petition ofAppeal should be presented had lapsed.
The plaintiff made an application for Execution of Decree in terms of S. 763 on thebasis that there was an appeal filed and the defendants were noticed. Thelearned District Judge rejected the Petition of Appeal as being out of time on thebasis that there was no entry in the Motion Book that the Petition of Appeal wasfiled on 02.12.94, and allowed the application for writ.
In terms of S. 755(3) the applicant has to “present" to the original court apetition of appeal within 60 days of the judgment.
The act of the Registered Attorney in tendering the Petition of Appeal to theRegistrar and the act of the Registrar in placing the date stamp and his initials onthe Petition of Appeal constitute presentation of the petition of Appeal.
When a petition of appeal is presented by the appellant and received byCourt under S. 755(3), S. 755(4) provides that the petition should be filed and therecord forwarded to the Court of Appeal.
The act of filing the Petition and that of forwarding the record to the Court ofAppeal are official acts of the District Court. Any delay in filing a petition in therecord cannot be attributed to the appellant.
Sri Lanka Law Reports
 2 Sri LR.
AN APPLICATION in Revision from the order of the District Court ofAnuradhapura.
N. M. Saheed for Defendants-Petitioners.
H. M. R Herath for Plaintiff-Respondents.
S.N. SILVA J. (P/CA)
The above application is in revision from the order dated 09.12.94.By that order Learned District Judge, (1) rejected the petition ofappeal that had been filed by the defendants, (2) allowed theapplication of the plaintiff for execution of decree.
Judgment was entered in this case on 05.10.94 in favour of theplaintiffs. The defendants filed a notice of appeal on 12.10.94. It isagreed that the petition of appeal had to be filed on or before
According to the journal entry of the District Court record thepetition of appeal is minuted as at 09.12.94. However, LearnedDistrict Judge has found that the petition of appeal has been handedover to the Registrar by the registered attorney of the defendants on
The Registrar has placed his initials and entered the timeas 1.20 p.m. It appears that according to the practice in the Registrythe petition of appeal had to be thereafter taken to the record roomwhere it is entered in the motion book and filed in the record. Thesesteps have not been taken on 02.12.94.
The plaintiff made an application for execution of decree, in termsof section 763 of the Civil Procedure Code, on the basis that therewas an appeal filed from the. judgment. Notice of this application hasbeen served by way of substituted service. Thereafter, thedefendants appeared in Court and the Court considered the questionwhether the petition of appeal has been presented within time.Learned District Judge has held that since there is no entry in themotion book it cannot be said that the petition of appeal was filed on
The entry being on 09.12.94 Learned Judge held that thepetition of appeal has been filed outside the period of 60 days. Onthat basis he rejected the petition of appeal and allowed the motionfor execution of decree.
Nachchiduwa v. Mansoor (S. N. Silva J. (P/CA))
Counsel for the petitioner submits that the Learned District Judgewas in error when he rejected the petition of appeal. He relies on theprovisions of section 755 of the Civil Procedure Code as amended byAct No. 79 of 1988. Counsel for the plaintiffs-respondents submitsthat the date to be reckoned for the purpose of computing theappealable period is the date on which the petition of appeal isminuted in the record.
We have carefully considered the submissions of learned counsel,we note that in terms of section 755(3) the appellant has to “present”to the original court a petition of appeal within a period of 60 days ofthe judgment. The act of the registered attorney of the defendants-appellants in tendering the petition of appeal to the Registrar and theact of the Registar in placing the date stamp and his initials on thepetition of appeal constitute a presentation of the petition of appeal.The proviso to section 755(3) states that if the petition is notpresented within the period of 60 days as provided "the court shallrefuse to receive the appeal". The contents of the proviso support theinterpretation stated above that the act of the Registrar in placing thedate stamp on the petition and placing his initials on it amounts to apresentation of the petition of appeal and its receipt by the Court.
When a petition of appeal is presented by the appellant andreceived by court as stated in section 755(3). Section 755(4)provides that the petition should be filed and the record forwarded tothis Court. It is seen that the acts of filing the petition and that offorwarding the record to this Court, are official acts of the DistrictCourt. Any delay in filing a petition in the record cannot be attributedto the appellant. Therefore, we are of the view that the LearnedDistrict Judge erred in holding that the petition of appeal has notbeen presented within the period of 60 days. We set aside the orderdated 09.12.94. The District Court will now consider the application ofthe plaintiffs for execution of decree pending appeal after permittingthe defendants to file objections. The application should beconsidered in terms of section 763 of the Civil Procedure Code readwith Section 23 of the Judicature Act. The application is allowed. Wemake no order for costs.
DR. RANARAJA J, -1 agreeApplication allowed.
NACHCHIDUWA V. MANSOOR