NEW LAW REPORTSOF CEYLONVOLUME LXX
Present : H. N. G. Fernando, S.P.J., and G. P. A. Silva, J.M. LAIRIS APPU, Petitioner, and D. PIERIS and others,
S.C. 7/66—Application in Revision in D. C. Kurunegala, 403jL
Privy Council—Execution of decree pending appeal thereto—Application io DistrictCourt in the first instance—Permissibility—Civil Procedure Cede, s. 777—Appeals (Privy Council) Ordinance, Schedule, Pule 7.
In an action for declaration of title to aland and ejectment of the defendanttherefrom, the plaintiffs! obtained judgment and decree in their favour. Afterthe decree was executed and the plaintiffs were put in possession of the land,the Supreme Court allowed the defendant’s appeal against the judgment anddismissed the plaintiff’s action. On the next day the plaintiffs gave notice oftheir intention to appeal to the Privy Council.
Held, that, while the application for leavo to appeal to the Privy Councilwai still pending in the Supreme Court, the defendant was entitled to apply tothe District Court undor section 777 of the Civil Procedure Code that he berestored to possession of the land. The defendant was not bound by Rule 7of the Rules in the Schedule to the Appeals (Privy Council) Ordinance to applyto the Supreme Court in the first instance.
.APPLICATION to revise an order of the District Court, Kurunegala.
W. Jayewardene, Q.C., with L. C. Seneviratne and S. MunasingJie,
for the defendant-petitioner.
C. Gooneraine, Q.G., with R. C. Gooneratne, for the plaintiffs-
Our. adv. vult.
I*H 7711—2,075 (1C/87)
H. N. G. FERNANDO, S.P.J.— Lairis Appu v. Pieria
July 11, 1966. H. N. G. Fernando, S.P.J.—
This was an action for declaration of title to a land and ejectment ofthe defendant therefrom. The District Court in January 1962 upheldthe claim of the plaintiffs, granted a declaration of title and orderedthe ejectment of the defendant from the land. Thereafter, the plain-tiffs applied for a writ of possession which was issued, and possessionwas delivered under the Writ to the plaintiffs on 30th March 1962. On25th August 1965 the Supreme Court allowed the defendant’s appealagainst the decree, set aside the decree and dismissed the plaintiffs’action. On the next day the plaintiffs gave notice of their intentionto appeal to the Privy Council against the judgment of the SupremeCourt, and the application for leave to appeal is still pending in thiscourt.
In September 1965, the defendant made an application under Sec-tion 777 of the Civil Procedure Code to the District Court asking thathe be restored to possession of the land. After inquiry the DistrictJudge made order on 5th October 1965 refusing the defendant’s applica-tion for restoration of possession, on the ground that because an appealto the Privy Council is pending the defendant had no right to applyto the District Court for execution of the decree of the SupremeCourt.
The opinion of the learned District Judge is based upon a decisionof this Court in Silva v. King1. In that case decree had been enteredin favour of the plaintiff for a certain sum of money and an appeal tothe Supreme Court against that decree had been dismissed. Thedefendant thereupon applied for leave to appeal to the Privy Councilagainst the judgment of the Supreme Court and while that applicationwas pending, the plaintiffs sought and obtained from the District Courta writ of execution for the recovery of the decreed amounts. On appealbeing taken from the refusal of the District Judge to stay executionof the writ, this court held that the power to direct that the judgmentof the Supreme Court be carried into execution is vested in the SupremeCourt under Rule 7 of the rules in schedule 1 of the Privy Council(Appeals) Ordinance, and that therefore a District Court had no powerwhile an application for conditional leave is pending to grant executionof the decree.
respectfully agree with the decision in Silva v. King. But thesituation in the present case is not the same as was the situation dealtwith in that decision. There what the plaintiffs sought from the DistrictCourt was an order which would enable him to recover the money decreedto him in a decree of the Supreme Court against which an appeal waspanding or probable. In the present case however, the order whichthe defendant sought from the District Court was not an order to executethe Supreme Court decree. That decree did not direct the defendantto be placed in possession of the land. What the defendant in reality
1 (I93S) 37 N. L. Jt. 133.
Ariyadaaa v. T7>e Queen
sought from the District Court in this case was an order which wouldrestore him to the status quo which had prevailed before the DistrictCourt on 30th March 1962, by virtue of it3 writ of possession, placedthe plaintiffs in possession of the land. It does not at first sight appearthat the Privy Council Appeal rules provide for such a situation, sothat the making of an order by the District Court of the nature requiredin this case does not appear to be in conflict with the Privy CouncilAppeal rules. Accordingly, the ground on which it was held in Silva v.King that the execution could not be granted by the District Courtdoes not affect the circumstances of this case.
It was held in Asiriwathan v. VLudalihamij1 that Section 777 of ourcode like the corresponding Section 583 of the Indian code was in termsinadequate to meet all the casss where a party sought restitution ofhis rights after a decree had been passed in the Supreme Court. Butfollowing judgments in India construing Section 583, it was held thatSection 777 authorised a District Court “ to cause restitution to bemade of all the benefits of which the successful party in the appeal wasdeprived by the enforcement of the erroneous decree of the court offirst instance.” It is precisely that restitution for which the defendantapplied to the District Court, after he obtained from this court a decreedismissing the plaintiffs’ action. For these reasons we made orderon 21st June 1966 directing the issue by the District Judge of a 'writof possession.
P. A. Selva, J.—I agree.
A. M. LAIRIS APPU, Petitioner, AND D. PIERIS and others, Respondents