Sadhwani v. Deepu Sadhwani (Palakidnar, J.)
BAKMEEWEWA, AUTHORISED OFFICER OF PEOPLE'S BANK
ATUKORALE A. C. J..
H. A. G. DE SILVA. J. ANDG. P. S. DE SILVA. J.
S. C NO: 10/87.
S. C. SPL. I, A. NO: 181/86 .
A. 1070/84 (REVISION)
C. COLOMBO NO: 379’4/Zl .
OCTOBER 1 7 AND NOVEMBER.21/1988.
Finance Act S. 72 (2) and (3) — (7) and- (8). Redemption under'Finance Aci,ofMortgaged land — Vesting in the People's Bank — -Order of delivery ofpossession — Execution by way of summary procedure under chapter 24 — 'Right of appeal — Application for stay of execution under S. 763 (2) of the Civil■ Procedure Code —Jurisdiction. -.'',
A previous owner of certain premises applied to the People's Bank forredemption of his land under provisions of the Finance Act No: "1 1 of 1963 asamended by the Finance and.Ceylon.State Mortagage Bank (Amendment) LawNo: 16 of 1973. After inquiry the People's Bank determined that the premisesshould be acquired and upon a .vesting'order made .by the Finance Ministerunder S'. 72(2) the premises vested 'absolutely' in the Bank free, from allencumbrances' S.-72 (3): The- appellant being the Authorised Officer of the.People's Bank being-unable,to.obtain possession <?f the premises applied to theDistrict Court under S. 72(7) for an order for delivery of possession by way ofsummary procedure under .Chapter 24 C. 'P-. C. as stipulated by-S.' 72 (8):
Sri Lanka Law Reports
/19891 I SnL. R.
Accordingly the District Court entered an order msi and despite the objectionsof the respondent entered order absolute on 28 11.83. The respondentappealed and pending the appeal the Bank's Authorised Officer moved forexecution. The respondent filed papers for a stay of execution under S. 763 (2),C. P: C. The District Judge on 30.7.84 rejected the application for stay ofexecution hol.ding (a) that there was no right of appeal and (b) that the order fordelivery of possession was not a final order and leave to appeal had not beenobtained.
In appeal the Court of Appeal.set-aside the order of the District Judge anddirected him to hear the application for stay of execution.'
The jurisdiction exercised by the District Court under Section 72(7) and (8) of-the Finance Act as amended is a.special jurisdiction and there is no right ofappeal from an order made in the exercise of such jurisdiction, unless a right ofappeal is expressly .provided for in the Act. No right of appeal is provided in the■: Act. Hence-the District Court had ho jurisdiction to entertain an application forstay of execution pending appeal under S. 763 (2) of the Civil Procedure Code.
Cases referred to:
. Sathir v. Najeare (1 978) 79.(2) NLR 1 26. 135
Sangarapiliai v. Chairman. Muncipal Council.of Colombo 32 NLR 62.
Soertsz v. Colombo Municipal Council — 32 NLR 64.
■ 4. Kana'gasunderam v. Podihamine — 42 NLR 97
5. A..G. vTSillam — 11 ER 1200. 6. . King v. Joseph Hanson — 106 ER 10271. The Queen v. StockA 1-2,ER 892 •
Vanderpoorten v. The Settlement Officer— 43 NLR 230
Fernando v. Fernando 5 GWR 156■
Commissioner,of Income Tax v. DeVos —
11 ;■ be Silva v. Commissioner of Income Tax — 53 NLR 280. -282.
.. .1 2. National Telephone Co. Ltd. y. The Postmaster-General [,1913] AC 546.552.,
.■ APPEAL from judgment of Court of Appeal •
Bakmeewewa. Authorised Officer of People's Bank v., Konarage Raja
SC(G. P. S. de.Silva. J.) • .233
Faiz Mustapha P.C. with Miss Arulpragasam and Nigef Hatch for Appellant..'
. M. Kanag-lsva.ran. P.C. with S, Mahenthiran and Miss Enoka Perera forrespondent,,•,•
' Cur. adv. v'uli.
January 1.6. 1989.
P S. DE SILVA. J
•. *".*i.J ‘; • ■ •,.'
A previous, owner of premises ■ No,. 9;5,. 3,rd Cross. Street.£Colombo T1. made an application for redemption under theprovisions of the Finance Act. No. 1 1 of 19,63. as amended' bythe Finance and Ceylon Stafe'.Mortgagp Ban.k (^mendment) LawNo. 16 of .1 973 ' (hereinafter referred . to'-as. the. Act).: The' respondent to this: appeal was carrying, on. business, in these-premises. After inquiry, the Bank determined- that"the premisesshould be acquired and' upon a vesting order1'made by theMinister of Finance under section 7.2(2) of the Act-and duly–.published in the gazette.- the .premises vested ''absolutely"'in’ theBank "free1 from all encumbrances" (•Section-’. 72(3) of- the-'Act). •The appellant, who is-the. authorized officer .of the Bank.’ beingunable to obtain, possession of the premises. ■ made an’application to-the' District Court in' terms of-section 72(7)'of theAct«. It:is.to be noted that se'ctio'n:'72(7) enacts', inter alia, that this•authorized officer of the ba'nk- .upon-production of. the-vesting .iorder, is "entitled to'obtain an-.order for delivery;of possession-pf'.such premises".-• Section 72(8) provides.,.-that every :suchapplication made.to the District Court '-'shall be made, apd shallbe disposed of., by way of summary procedure in accordancewith the.provisions of Chapter 24 of; the. C-ivil Procedure Code".Accordingly, the,District Court entered an. order nisi, and despite,the objections taken .by the.respondent the District-C.o.urt;;madethe order absolute on 28:T 1.83.,
– Being aggrieved by the. order of 28.1.1:83. the respondent-fij.eda notice .of appeal on. 1 2.1 2,83. and’ the petition of appeal, on
84, .0" 20.2:8.4 the appellant . made ’ an application toexecute the order pending appeal. On .29.5.84-the respondent•filed, petition:and-affidavit .in terms of section 763(2) of the Civ,il
Sri Lanka Law Reports
119891 1 SriL. R.
Procedure Code moving for a stay of execution pending appeal.The matter was taken up for inquiry on 3’0th July 1984 and therespondent moved to call evidence in support of his applicationfor stay of-execution pending appeal. The District Judge by hisOrder of 30.7.84 rejected the-application for stay of executionpending appeal on the grounds (aj there was no right of appeal:
• (b) that the order for delivery of possession of the premises wasnot a 'final Order' and as 'leave to appeal' had not been obtainedfrom the Court of Appeal there was no valid appeal: Thereuponthe respondent moved the Court of Appeal to revise the order ofthe District Court. The Court of Appeal set aside the order of theDistrict Judge dated 30.7.84 and directed him to entertain andhear the respondent's application for stay of execution pendingappeal and to permit him to lead evidence in support thereof. It isfrom this judgment of the Court of Appeal that an appeal hasbeen preferred to this Court.
The principal submission of,Mr. Mustapha. Counsel for theappellant, is that there is no right of appeal against the order ofthe District Judge made on 28.1 1.83 granting the relief of anorder for delivery of possession, of the premises. In short.Counsel urged that the Jurisdiction exq^cised by the DistrictCourt-under the provisions of section 7.2(7) and 72(8) of the Act.is a special jurisdiction and there is.no right of appeal from anorder made in the exercise of such jurisdiction, unless a right ofappeal is expressly provided for in the Act. Admittedly, no suchright is.given under the Act.
The first point which arises for consideration is. whether thejurisdiction exercised by the District Court in the instant case is aspecial jurisdiction. This has to be decided by considering thenature of the proceedings before the District Court. To my mind.. the proceedings envisaged in. sections 72(7) and 72(8) areclearly in the nature of execution proceedings and nothing more.. Once the Minister publishes the "vesting.order" in the gazette,the premises vest in the Bank "absolutely" and "free from allencumbrances" (sections 72(2) arid (3) of the Act.). The effect ofthe, "vesting–order "was pithily put by Pathirana J. in hisilluminating judgment'in Sathir v. Najeare, ^).
Bakmeewewa. Authorised Officer of People's Bank v. Konarage Raja
SC(G. P S.de Silva. J.)_••235
"the vesting order in favour of the Bank snaps the link .
of owner-ship with persons who were entitled-to the land'prior to the acquisition or who claims rights thereto- Itcreates a new independant title in the Bank not referable toany previous ownership o.r right at the same time wiping out.all other rights, title and interests in the land. The title of theBank to the premises in question is clearly a titleparamount" (The emphasis is. mine)
Thus it is clear that no substantive question in regard to the rightto possess the premises could- arise in the proceedings'beforethe District Court contemplated by Sections 72(7) and 72(8) of’the Act. What these sections provide for is.a speedy mode ofobtaining possession of the premises which have already vestedin the. Bank by virtue, of the vesting order. In other- words, anapplication is made to the District Court and the provisions ofChapter 24 of the Civil' procedure-Code are invoked solely for thepurpose of' executing an extra judicial order;. No disputedquestion Tn regard'to.the right, title or interest in the. premisesarise for determination'before the District Court. I accordinglyhold that the jurisdiction exercised by the District Court is aspecial jurisdiction. ■ •' ■ '
Mr.’Mustapha next contended that there is no right of appeal,from an order of a District Court exercising a speeial jurisdictionunless; there- is- express statutory provision conferring- such atight.- In Sangarapillai Vs: Chairman. Municipal Council- ofColombo (2) it was_hel.d that where the District Court exercises aspecial jurisdiction conferred upon it by the Housing and TownImprovement Ordinance No: 1-9/of 1915, there is no-generalright of appeal to the Supreme Court. The remedy available to aparty aggrieved b'y-the decision of the District Court acting as thetribunal of appea.l in terms of section 84 of the Ordinance’ is toapply to the District Court to state a case on a matter of law for.the opinion-of the-Supreme Court and if it refuses may apply tothe Supreme'Court for an Order requiring the District Court tostate such a-case-in terms of-section'92(1). In Soertsz vsr-ColombOrMunicipal Council (3) Fisher1 C<J. had occasion to■consider the question i-whether there is a -right of appeal to the-
Sri Lanka Law Reports .
11989/ 1 Sri L. R.
Privy Council from a judgment of the Supreme Court on a casestated under section 92 of the Housing and Town ImprovementOrdinance No. 19 of 1915. In the course of his judgment, thelearned Chief Justice observed:
"The District Courts were established by Section 55 of thatOrdinance (Courts- Ordinance. 1889) and their civiljurisdiction was defined in section 65. The appellatejurisdiction of the Supreme Court is-defined by section21(2) and the powers of the Court on appeal are defined inSection 40.. and. so far as appeals from District Courts tothe Supreme Court are concerned those provisions relatesolely to the exercise by District Courts of the jurisdictionconferred upon them by the Courts Ordinance 1899".
(The emphasis is mine) –
– Mr. Mustapha relied heavily on the case of Kanagasunderamvs. Podihamihe, (4). That was a case referred to a Bench of threeJudges to decide the preliminary objection taken on behalf of theCrown that no appeal lies to the Supreme Court from an order oftaxation of costs made under section 31(1) of the LandAcquisition Ordinance (Chapter '203 of the 1938 revisedLegislative- Enactments). On a consideration of a number ofauthorities cited by Crown Counsel Howard C. J. (with MoseleyS. P: J. and Soertsz J: agreeing) affirmed the principle that theSupreme Court would have -no tight to entertain an appeal wherethat power is not expressly given by statute: it is not a right thatcan be implied or inferred. Howard C.J. referred to the-case PfA. G. vs-: .Si I lam. (5) where the Lord Chancellor (Lord Westbury)expressed himself .in the following terms:
"Thecreation of a new .right of appeal is plainly an act whichrequires .'.legislative authority. The court from which .-theappeal is given, and the Court to which it is given, must.both .be, bound, and. that must be the act of .s.ome higherpower,. It is not competent'.to. either tribunal,'or to both
collectively, to create any such right .;
– An. appeal- is,the right of entering' a superior Court, and■invoking its aid and interposition to .redress. the error of theCourt below
scBakmeewewa. Authorised Officer of People's Bank v. Konarage Raja
(G. P S. de Silva. J.)237
The above dicta indicate-the reason for a right of appeal beingavailable only if it is expressly conferred by statute., Howard, C.J.also cited the principle stated by Abbpt, C.J. in King vs. JosephHanson. (6) that.
although a certiorari lies, unless expressly-
taken away, yet an appeal does not lie, unless-expresslygiven by statute"…
This dictum was affirmed in the The Queen vs. Stock (7). .
The above authorities were considered by Keuneman J. inVanderpoorten vs. The Settlement Officer, (8) where it was heldthat an appeal does not lie from a decision under section 20 ofthe Waste Lands Ordinance No. 1 of 1 897, thus re-affirming theprinciple that a right of appeal cannot be impiied-. but must begiven by express words. See also Fernando, v. Fernando (9)
Mr. Kanag-lswaran for the respondent strenuously sought tocounter the submissions of Mr. Mustapha by relying heavily, onthe provisions of section 23 of the Judicature Act: No. 2 of 1 97.8as amended by Act. No.. 37. of. 19.79. This provision reads asfollows: "Any party who shall be dissatisfied’with any judgmentdecree or order pronounced by a District Court may. (exceptingwhere such right is expressly disallowed) appeal to the Court ofAppeal ….. . " Counsel contended that unless the right of appealwas expressly disallowed, a right of appeal was always availableagainst any judgment decree or order of the .District Court, Hemaintained that the language of section 23 of the Judicature Actwas wide enough to confer a right of appeal from the order ofthe District Court in the instant case.
Section 23 of the present Judicature Act is similar to theProvisions contained in section 73 of the repealed CourtsOrdinance. Section 23 occurs in Chapter IV of the Judicature Actwhich spells out the civil jurisdiction of the District Courts. In myopinion section 23- of the Judicature Act provides for a right ofappeal in respect of judgments or.orders of the District Courtmade in the exercise of its ordinary, general, civil-jurisdiction and
Sri Lanka Law Reports
ft 989/ 1 Sr, L. R.
has no application to the special jurisdiction conferred on theDistrict Court as in the instant case. As already stated, thejurisdiction exercised by the District Court in terms of sections72(7) and 72(8) of the Act is the jurisdiction of a Court of•execution in respect of an extra judicial order. It is basically notdifferent from'the jurisdiction exercised by the Magistrate's Courtin proceedings for the recovery of taxes in default under theIncome Tax Ordinance..It is settled law that there is no right ofappeal- from-an order made by a Magistrate's Court in suchproceedings — vide Commissioner of Income Tax vs. De l/osH 0) and De-Silva vs. Commissioner of Income Tax 1). The factthat there is no right of.appeal does not mean that an aggrievedparty is left-without a remedy, for revision is available.
■ At-the hearing before us. we invited the attention of counsel tothe principle stated by Viscount Haldane in National TelephoneCo. Ltd vs. The Postmaster General (2):
.."When a question is-sta'ted to be referred to an established■Court without more. it. in my opinion imports that, the• ordinary incidents of the procedure of that Court are toattach, and.also that any general right of appeal from itsdecisions likewise attaches". ■
Although it appeared at first' that this principle ran counter tothe submissions .advanced on behalf of the appellant, yet on aconsideration of the context in which the principle wasenunciated. I am satisfied, that it has no application to the presentcase. The'fa’cts in the National Telephone Co. Ltd. case (supra)may be briefly stated as follows. By the Railway and Canal TrafficAct of 1888 the;Railway and Canal Commission was establishedas: a Court of Record and section 17 provided, for a right ofappeal’from,,the,Commission to the Court of Appeal except uponquestions of fact on locus standi.. An agreement entered intobetween the-. National, Telephone. Co. Ltd. and the PostmasterGeneral provided ‘that any dispute -as to the value of theequipment should be referred to the Commission. Disputeshaving arisen as to the value of the equipment, the matter was
Bakmeewewa. Authorised Officer of People's Bankv^ Kona rage Raja •
SCIG.P.S.de Silva.. J.)-239
referred to the Commission. The question for. decision waswhether the reference to the Commission was a reference to theCommission as a Court of Record or to the Commission actingas arbitrators. It was held that the reference was to theCommission as a Court of Record and not as arbitrators.Therefore the right of appeal to the Court of Appeal which wasspecifically conferred by the Act establishing . the Commissionwas available. It was in this context that Viscount Haldane statedthe principle set out above.
(accordingly hold that there is no. right: of-appeal from theorder of the District Court dated 28.1,1:83 allowing -theapplication for an order of delivery of possession of thepremises. The District Court therefore had'no jurisdiction toentertain the, application made by ihe respondent under the■provisions of section 763(2) of the Civil Procedure Code forstay^of execution pending • appeal: The appeal .is- allowed.. TheJudgment of the Court of Appeal is s'et aside.'and the DistrictCourt is directed to reject the application for stay of execution,pending appeal made by the respondent.
In fairness to the Court of Appeal It is right to ad,d that thequestion argued before us by'.Counsel for the appellant was notraised nor argued before the- court. -In these circumstances. Imake no order for costs of appeal in the Suprerpe Court as wellas in the Court of Appeal.'
ATUKORALE. j. — I agree
A. G. DE SILVA, j! — I agreeAppeal allowed.