Bandara v. The People's Bank
THE PEOPLE’S BANK
COURT OF APPEALUDALAGAMA, J. ANDNANAYAKKARA, J.
CALA NO. 1356/98.
DC POLONNARUWA NO. DR 14/96.
FEBRUARY 22, 2002
Debt Recovery (Special Provisions) Act, No. 2 of 1990 as amended by Act,No. 9 of 1994, sections 13, 16 and 18 – Special jurisdiction – Execution of writ- Should the defendant be served with notice? – Is it imperative? — Decree nisimade absolute – Is there a right of appeal?
After institution of the action, the trial Judge acting under the provisions of theDebt Recovery Act, having entered decree nisi, subsequently made it absolute.Thereafter, the fiscal executed the writ.
The petitioner contends that he was not served with notice of execution of decree,although he has preferred an appeal against the decree absolute.
The Debt Recovery (Special Provisions) Act is an Act which has createdspecial jurisdiction and it is a procedure whereby no right of appeal hasbeen bestowed on a party aggrieved by a decree absolute.
There is no obligation on the part of the respondent to give notice ofexecution of decree to the defendant. In terms of s. 13, where a decreenisi entered is made absolute it shall be deemed to be a writ of executionduly issued to the fiscal in terms of section 225 (3) of the Civil ProcedureCode and it shall be the duty of the fiscal to execute same.
APPLICATION in revision from the order of the District Court of Polonnaruwa.
Cases referred to:
Bakmeewewa v. Kanagarajah – (1989) Sri LR 231.
Vanderporten v. The Settlement Officer.
Martin v. Wijewardena – (1989) 2 Sri LR 409.
Sri Lanka Law Reports
 3 Sri L.R.
K. S. Tilakaratne with Vindya Weerasekera for petitioner.Ikram Mohamed, PC with Mahesh Katulanda for respondent.
Cur. adv. vult.
May 16, 2002NANAYAKKARA, J.
The plaintiff-respondent-respondent Bank (respondent-Bank) institutedaction against the defendant-appellant-petitioner (petitioner) under theDebt Recovery (Special Provisions) Act, No. 2 of 1990 as amendedby Act, No. 9 of 1994 for the recovery of debt due to it from thepetitioner.
After the institution of action, the learned District Judge acting underthe provisions of the Debt Recovery Act having entered decree nisi,subsequently on 13. 11. 1996 made it absolute.
Thereafter, in pursuance of a direction given by Court on06. 11. 1998, the fiscal executed the writ and it is against this orderof execution of writ carried out on 06. 11. 1998 that the petitionerhas sought relief by way of revision by this application.
The petitioner impugns the order made by the learned District Judgeon 06. 09. 1990 solely on the ground that he was not served withnotice of execution of decree, although he has preferred an appealagainst the decree absolute entered in the case.
The Debt Recovery (Special Provisions) Act, under which therespondent bank has sought to recover its debt due to it from the
Bandara v. The People's Bank (Nanayakkara, J.)
petitioner, is an Act which has created special jurisdiction, and it isa procedure whereby no right of appeal has been bestowed on a »party aggrieved by decree absolute made by Court.
According to section 13 of the Debt Recovery Act which has createdthis special jurisdiction, a decree absolute is deemed to be a writ ofexecution duly issued in accordance with the provisions ot the CivilProcedure Code relating to execution of decrees. Section 13 of theDebt Recovery (Special Provisions) Act, No. 2 of 1990 provides thus:
“Subject to orders of Court, where a decree nisi entered in anaction instituted under this Act is made absolute it shall be deemedto be a writ of execution duly issued to the fiscal in terms of section225 (3) of the Civil Procedure Code (chapter 101) and it shall be 30the duty of the fiscal to execute the same in the manner prescribedin the Civil Procedure Code for the execution of writs."
Therefore, a careful reading of the relevant section of the DebtRecovery Law, makes it evident that there is no obligation on thepart of the respondent to give notice of execution of decree to thepetitioner as claimed by him although he preferred an appeal againstthe decree absolute. In regard to the appeal which the petitioner haspreferred against the decree absolute, it should be observed that theright of appeal is a statutory right conferred on a party and unlessit is expressly reserved in the legislation creating that special jurisdiction, aoa party cannot avail himself of that procedure against any order madeunder that special legislation. This is evident from the followingauthorities:
Bakmeewewa v. Kanagarajah(1>
Vanderputin v. The Settlement Office/™
Martin v. Wijewardenap>
Sri Lanka Law Reports
 3 Sri L.R.
The Debt Recovery Act under which the respondent has soughtrelief against the petitioner being a special legislation has not conferredon him the right to appeal against a decree absolute. Therefore, thepetitioner cannot complain that as he has preferred an appeal against 30the decree absolute issued against him he should have been givendue notice of execution of decree before the execution of writ wascarried out.
The only remedy which was available to the defendant-petitionerin terms of section 16 of the Debt Recovery (Special Provisions) Actwas to have sought relief by way of leave to appeal against the orderdated 13.11.1996 making the decree nisi absolute which the defendantfailed to make avail himself.
In the circumstances, I would hold that the execution of writ inthis case was duly carried out.eo
For the foregoing reasons I dismiss the application of the defendantand cast him in cost in a sum of Rs. 5,000.
UDALAGAMA, J. – I agree.
BANDARA v. THE PEOPLE ‘ S BANK