015-SLLR-SLLR-2009-V-1-AFEELA-UMMA-vs-SARA-UMMA.pdf
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AFEELA UMMA
vsSARA UMMA
COURT OF APPEALBASNAYAKE. JCHITRASIRI. JCA 46/2002HC CHILAW 22821/REFEBRUARY 13, 2009
Civil Procedure Code – Section 763- Section 765 (2) – Writ pendingappeal – Substantial loss alleged – If writ is stayed, Conditions to beimposed? – Deposit of security – Mandatory? – Writ pending appealapplication – Can it be dismissed?
The defendant – petitioners application to stay execution of the writ pendingappeal on the ground of “substantial loss” was dismissed by the DistrictCourt.
It was contended that such an application cannot be dismissed but Courtshould have either allowed the execution or stayed the same until adetermination is made in the appeal finally. It was further contended thatCourt has not considered the ‘substantial loss’ that would be caused to thejudgment debtor.
Held:
When an application for writ pending appeal has been properlymade Court cannot and should not dismiss the same. In such asituation Court shall make an order either allowing or staying theexecution.
When the judgment debtor satisfied Court that there existssubstantial loss if he is evicted from the premises in question, then theCourt should stay execution of writ upon such terms and conditionsas it may deem fit – Section 763(2)
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Afeela Umma vs. Sara Umma
(Chitrasiri, J.)
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Per Chitrasiri. J.
“I have carefully examined the reasoning of the District Judge andthe evidence that had been led in this connection, relevant evidence, Ibelieve is sufficient to prove substantial loss”.
APPLICATION for leave to appeal from an order of the District Courtof Chilaw.
Cases referred to:-
Don Piyasena vs. Mayawathie Jayasuriya 1986 1 Sri LR 6
Grindlays Bank Ltd. vs. Mackinnon Mackenzie & Co. Ceylon Ltd1990 1 Sri LR 19
Amarange vs. Seelawathie Weerakoon 1990 2 Sri LR 332
Ranjan Suwandaratne with Vipule Maninnage for plaintiff-petitioner-petitioner
S. N. Tirimanne for defendant-respondent-respondent.
Cur.adv.vult
March 18, 2009CHITRASIRI, J.
The Plaintiff Judgment Creditors-Petitioners-Petitioners(hereinafter referred to as Petitioners) filed action againstthe Defendant-Judgment Debtors-Respondents-Respondents(hereinafter referred to as Respondents) for declaration oftitle to the land referred to in the schedule to the plaint filedin the District Court of Chilaw. The learned District Judgeentered judgment in favour of the Petitioners and made orderto evict the Respondents from the land in dispute. Petitionersthereafter made an application to the District Court interms of the provisions contained in Chapter LIX of the CivilProcedure Code for writ of execution against the Respondentssince an appeal had been preferred against the Judgment.The learned District Judge having considered the evidenceplaced before him dismissed the aforesaid application of thePetitioners on 30th January 2002.
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The Petitioners sought leave of this Court to appealagainst the said order dated 30th January 2002 andalso prayed that it be set aside. Learned Counsel for thePetitioners submitted that the learned District Judge haserred in law in determining the issue of “substantial loss”referred to in Section 763(2) (a) of the Civil Procedure Code.On the other hand, contention of the learned Counsel forthe Respondents was that the learned District Judge havingproperly considered the circumstances had come to thecorrect decision envisaged in the said section of the CivilProcedure Code.
The learned Counsel for the Petitioners has also takenup the position that an application of this nature cannot bedismissed by the District Judge as seen in this instance butthe Judge should have either allowed the execution or stayedthe same until a determination is made in the appeal finally.Therefore, the application of the petitioners is to obtain anorder from this Court to have the writ executed pendingappeal reversing the order of the learned District Judge onthe basis:
that he has erred in law when ascertaining “substantial
loss” caused to the judgment-debtor; and
that the judge had not followed the proper procedure by
dismissing the petition. I
I have carefully considered the way in which “substan-tial loss” referred to in Section 763 has been interpreted bythis Court as well as the Supreme Court in the past. In thecase of Don Piyasena v. Mayawathie Jayasooriya,® it washeld that “unless there is proof of substantial loss that mayotherwise result, execution of the decree will not be stayed” Thisproposition has been re-iterated in Grindlays Bank Ltd v.Mackinnon Mackenzie & Co Ceylon Ltd®. In that it had beenheld “If the Judgment-Debtor desires to stay of executionpending appeal, he should establish substantial loss”. In the
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case of Amarange v Seelawathie Weerakoon,(3> it was held that“Execution be stayed only where a Judgment-Debtor satisfiesthe Court that substantial loss may result unless a stay isgranted”.
Therefore, it is settled Law that a duty is cast upon theJudgment-Debtor, to prove substantial loss that may becaused to him /her if the writ of execution is allowed, inorder to succeed in an application made in terms of Section763 of the Civil Procedure Code. Moreover, it is our Law thatmere filing an appeal would not be a fact to stay executionpending appeal.
Justice H.W.Senanayake, dismissing an order made bythe District Judge in the aforesaid case of Amarange V Seela-wathie Weerakoon (supra) where similar circumstances hadarisen, has held thus:
“In the instant case the learned District Judge had failedto consider the evidence of the Petitioner, that he had been
a tenant in this premises for 16 years,
he had four children out of them two school going children,depending on him,”.
Having considered the law referred to above, it is myopinion that when an application under Section 763 of theCivil Procedure Code is made to the District Court, it is theduty of the Judge to consider whether a judgment-debtorsatisfies the Court that substantial loss may resultunless a stay is granted. Moreover, the term “Substantial loss”could be determined only after due consideration of all thecircumstances of the case. Therefore, an issue underSection 763 has to be determined on case by case basisand specific reason cannot be laid down- in order to provesubstantial loss caused to the judgment debtor. Reasons forsubstantial loss to one person may not necessarily becomereasons for another. Therefore, great care should be taken by
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I have carefully examined the reasoning given by thelearned District Judge including the above and also theevidence that has been led in this connection. Relevantevidence, I believe is sufficient to prove substantial loss thatmay be caused to the Respondent in the event the writ ofexecution is permitted. The District Judge, who had theopportunity of looking at the demeanor of the witnessas well as the opportunity of considering the evidencerecorded, is the best person to decide such an issue. Therefore,I am not inclined to interfere with the decision of the learnedDistrict Judge in respect of substantial loss caused to therespondents.
a District Judge considering all the circumstances at a giventime when arriving at a decision as to the substantial losscaused to a judgment -debtor.
Against this back-ground, I will now look at the reasonsgiven in the impugned order in respect of the substantial lossthat may be caused to the Respondents. In his Order dated30th January 2002 the learned District Judge has statedthus: I
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Afeela Urruna vs. Sara Umma
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Section 763 of the Civil Procedure Code also providesfor the manner in which the order, to allow or to stay theexecution should be made. It is seen that the Court whenmaking an order under Section 763 of the Civil ProcedureCode:
firstly should consider whether the execution should beallowed or stayed and;
secondly the conditions that should be imposed whensuch an order is made.
Therefore, it is clear when an application for writ pend-ing appeal which has been properly made, Court cannot andshould not dismiss the same. In such a situation, Court shallmake an order either allowing or staying the execution. Fur-thermore, when the judgment-debtor satisfies Court thatthere exists substantial loss if he/she is evicted from the cor-pus then the Judge should stay execution of writ upon suchterms and conditions as it may deem fit. This is clearly statedin Section 763(2) of the Civil Procedure Code.
In this instance, learned District Judge disregardingthese provisions of law has dismissed the petition of thepetitioners which obviously is erroneous. Since the learnedDistrict Judge has properly held that the judgment – debtorhad proved substantial loss that may be caused to Respon-dents in the event the writ is allowed, he should have stayedthe execution of writ upon which terms in accordance withthe manner provided in Section 763(2) of the Civil ProcedureCode.
In the circumstances, I set aside the order of the learnedDistrict Judge dated 30th January 2002 and substitutetherefor an order staying the execution of writ on thecondition that the Defendant- Respondents – Respondents
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deposit security in a sum of money which shall be deter-mined by the District Judge as prescribed in Section 763(2)(b) within a period of three months from the date this decisionis communicated to the Respondents.
Registrar of this Court is directed to communicate thisdecision forthwith to the District Judge of Chilaw.
No party is entitled to the costs of this application.
BASNAYAKE J. -1 agree
Application allowed
Writ stayed Security to be deposited as determined by theDistrict Judge