106-NLR-NLR-V-19-ABEYESEKERA-v.-ALAHAKOON-et-al.pdf
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Present: Wood Benton C.J. and De Sampayo J.
ABEYESEKERA v. ABAHAKOON et al.
333—D. C. Galle, 13,755.
Application for stay of execution pending appeal to the Privy Council.
In deciding whether an application for a _ stay of wwintionpending appeal to the Privy Council should be allowed or refused,the Supreme Court is not entitled to go into the merits of the case,or to dispose of them on any assumption that the jwyiirifflig of theSupreme Court and the District Court are correct.
The Supreme Court allowed the judgment-creditor to executehis judgment, on his giving security by way of a mortgage ofimmovable property of the fall value of the judgment debt for thedue performance of the order made by His Majesty in Council.
fJlHE facte appear from the judgment.
Hayley, for applicants.
Elliott, for respondents.
October 26, 1916. Wood Bekton C.J.—
This is an application for final leave to appeal to the Privy Councilfrom a decision of the Supreme Court affirming the judgment of theDistrict Court in this action, coupled with a further application underrule 8 of the rules scheduled to the Appeals (Privy Council) Ordi-nance, 1909,1 for stay of execution, upon the appellants givingsufficient security for the due performance of such order as HisMajesty in Council may ultimately make after the appeal has beenheard by the Judicial Committee. No exception can be taken tofinal leave to appeal being granted. But the respondents’ counselinvited us to act under rule 7 of the scheduled rules, and to allowthe judgment in respondents* favour to be executed upon good andsufficient security being furnished by his clients for the restitutionof the proceeds of their judgment, if the appeal should succeed in thePrivy Council. The grounds on which this application was basedwere that the appeal involves only questions of fact in regard towhich there have already been two concurrent judgments in hisColony; that the appellants’ counsel in the Supreme Court, afterhaving read the judgment of the District Court, and upon anintimation by the Bench that it would be difficult to persuade this
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1916. Court that it was wrong, did not proceed further with the appeal;
Wood that the appellants are wealthy, and the respondents are compara-Renton C. J. tively poor; and that the sum of money at stake, namely, Bs. 15,000,Abeyeeekera with interest, was of comparatively little importance to the un-v. Alahakoon successful, but of great importance to the successful, litigants. Heexpressed his readiness, if his application were allowed, to give apersonal bond with one surety for the full amount of the judgmentdebt. The appellants’ counsel on the other side stated that if astay of execution were granted, his clients would grant a mortgagefor the value of the entire amount involved in the action. It appearsthat some of the appellants’ property has already been seized inexecution of a writ issued by the District Court, and that its sale isnow pending.
I do not think that, for the purposes of such applications as thosewith which we have here to do, we are entitled to go into the meritsof the case, or to dispose of them on any assumption that the deci-sions of the Supreme Court and the District Court are correct. Itappears to me that rule 7 of the scheduled rules rather favours theview that in such a case as this execution of the respondents’judgment should be sanctioned. Buie 8 is merely a proviso to rule 7.I do not, however, think that a mere personal bond with or withouta surety can be described as “ good and sufficient ” security withinthe meaning of the former rule. The application for final leave toappeal to the Privy Council must be allowed. But I would dismissthe appellants’ application for a stay of execution, and would directthat the judgment in the respondents’ favour should be carried intoeffect upon their giving security for the due performance of any orderiultimately made in the case by His Majesty in Council, by way of amortgage of immovable property of the full value of the judgmentdebt, either by themselves or by a surety on their behalf.
In view of the fact that, although we have dismissed theappellants’ application for stay of execution, we have not allowedexecution to issue on the terms proposed by the respondents"counsel, I would make no order as to costs.
De Sampayo J.—I agree.