This section read along with s. 763, as it stood then, which stipulatedthat in the event of an application being made by the judgment-creditorfor execution of a decree which is appealed against, the judgment-debtorshall be made a respondent clearly showed that in so far as the judgment-creditor was concerned there existed no restriction as to the time withinwhich he could institute an application for execution of an appealabledecree, it was open to him to do so immediately upon the entering of thedecree – before the expiry of the time allowed for appealing or before thefiling of an application for stay of execution – even on the very day of thepronouncement of the judgment. There existed no barto the entertainmentof such an application. Nor was there a requirement that the judgment-debtor should be made a party respondent to such an application. Apractical consequence of this legal position was that very frequently therearose, immediately upon the judgment being delivered by the original
Sri Lanka Law Repons
[1990] 1 Sri L.R.
Court, a race between the judgment-creditor and the judgment-dabtor,the former rushing to Court in an endeavour to obtain execution of thedecree before the latter could file in court an application for stay oiexecution and vice versa. S.754( 1) of the 1973 Code provided that everyappeal to the Supreme Court from a judgment, decree or order of anyoriginal Court shall be made in the form of a written petition to it in thename of the appellant and shall be preferred to it as provided thereinafter.An appeal had thus to be in the form of a written petition and had to bepreferred in the manner prescribed in the relevant provisions subsequentto s.754 (1). According to s.754 (2) the petition of appeal had to bepresented to the original Court within a period of 10 days in the case ofan appeal from the decree of a District Court, the period of 10 days beingcomputed as set out in that sub-section. If presented in terms thereof thecourt had to receive it and deal with it as stipulated in the subsequentsections. If not so presented the court had to refuse to receive it. Whenthe petition of appeal was received by the Court under that sub-section,the ‘petitioner' was required by s.756 (1) to give forthwith notice to therespondent that he would on a day to be specified therein and, in the caseof an appeal from a decree of the District Court, within a period of 20 daysof the date of the delivery of the judgment or order, tender security for therespondent’s costs of appeal and that he would deposit a sufficient sumof money to cover the expenses of serving notice of appeal on therespondent. If the security was accepted and the deposit made within theperiod of 20 days, then the court must immediately issue notice of appeal(together with a copy of the petition of appeal) for service on therespondent through the Fiscal. Thereafter the court had to transmit thepetition of appeal with the papers and proceedings relevant to the appealto the Supreme Court. Thus whilst s.755 and s. 758 (1) of the 1973 Codeprescribed the form of the petitions of appeal, s.754 (2) and s.756prescribed the time and manner of preferring an appeal to the SupremeCourt. Thus, in my view, under the 1973 Code an appeal was preferredagainst the judgment, decree or order of the District Court only uponcompliance with the aforesaid provisions.
There had, therefore, to be compliance with two time-limits before anappeal could be held to have been preferred to the Supreme Court,namely, the presentation of the petition of appeal within 10 days asrequired by s.754(2) and the furnishing of security and the making of thedeposit within 20 days as required by s.756 (1). Both such periods wereto be computed from the date when the decree or order appealed against
Brooke Bond (Ceylon) Ltd. v. Gunasekera (, Atukorale. J.)
was pronounced in the manner set out in those two subsections. Hencea would-be appellant who complied initially with s.754(2) was allowedtime up to a total period of 20 days for compliance with s.756(1 ). It is onlywhen there has been compliance with both time-limits that notice ofappeal is ordered by Court to be served on the respondent. If there wascompliance with s.754 (2), but ‘the petitioner’ failed or omitted to complywith s.756 (1), then the petition of appeal’ must be held to have abatedand no further steps were necessary – s.756(2). The scheme of the 1973Code therefore shows that an appeal was preferred to the Supreme Courtonly where there was due compliance with the steps enumerated bysections 754(2) and 756(1) within the periods of-limitation prescribedtherein. It is, therefore, my view that the words “before the expiry of thetime allowed for appealing” from the decree in s.761 of the 1973 Codemeans and includes the period of 10 days allowed for presenting thepetition of appeal in terms of s.754(2) and, when there has been duecompliance therewith, the period of 20 days allowed for the furnishing ofsecurity and the making of the deposit in terms of s.756 (1). Where,however, a would-be appellant fails to comply with the provisions of s.754(2), the time allowed for appealing would expire on the lapse of the periodof 10 days. These words cannot, in my view, be confined to mean only thetime prescribed for the presentation of the petition of appeal. If this wasthe intention of the legislature it could have been so expressed simply andunequivocally by the use of the words "before the expiry of the timeallowed for presenting the petition of appeal" – words which, by way ofcontrast, have been used in the proviso to s.755. It is also borne out bys.756(3) which stipulated that when a petition of appeal has beenreceived under s.754(2) but ‘the petitioner' has failed to give the securityand to make the deposit as provided for by s.756(1 ), then ‘the petition ofappeal’ shall be held to have abated. This phraseology indicates that thereceipt of the petition of appeal by itself does not constitute an appeal.
Sections 753 to 778, including the aforementioned sections, of the1973 Code were repealed by s.3(1) (b) of the Administration of JusticeLaw, No. 44 of 1973, with effect from 1.1.1974. Chapter IV of this Law iscaptioned APPEALS PROCEDURE and consists of sections 315 to 356,which have been classified, inter alia, under the following sub-headings,namely, Right of Appeal (sections 316 and 317); [Lodging of Appeals(sections 318 to 328); Pre-hearing Prceeedings (sections 329 to 338) andHearing of Appeals (sections 339 to 347)]. A distinction was drawn for thefirst time in regard to the right of appeal from judgments on the one hand
Sri Lanka Law Reports
{t 990] 1 Sri L.R.
orders on the other, of original Courts. S.318, appearing under the sub-heading Lodging of Appeals, enacted that an appeal against a judgmentmay be lodged by giving notice of appeal to the original Court within suchtime and in the form and manner prescribed therein. Sections 320, 321,322 and 323 set out the time (within 14 days), the manner and the formof the lodging of the notice of appeal. Generally whilst s. 320 prescribedthe time, s.321 and s.322 prescribed the manner and s.323 the form ofthe notice of appeal. The notice had to be given within 14 days from thedate on which the judgment was pronounced as computed in s.320. It hadto be accompanied by security for the respondent's costs of appeal or anacknowledgment of waiver of security by the respondent or his registeredattorney and proof of service on the respondent or such attorney of a copyof the notice of appeal – s.321. Section 323, providing for the form of thenotice of appeal, stipulated that it should contain the particulars pre-scribed by rules of court, that it should be signed by the appellant or hisregistered attorney and that it should be duly stamped. The rules of Court- Supreme Court Appeals Procedure Rules, 1974, published in theGazette Extra-Ordinary dated 23.1.1974 – did not require the grounds ofappeal to be specified in the notice of appeal. S.330, appearing under thesub-heading Pre-Hearing Proceedings, required the “appellant" to lodgein triplicate in the Supreme Court written submissions in support of his“appeal" with proof of service of a copy thereof on the respondent or hisregistered attorney. If the “appellant” failed to do so his “appeal" wasdeemed to have abated. It is relevant to note that the filing of writtensubmissions was a step in pre-hearing proceedings before the SupremeCourt subsequent to and independent of the lodging of the notice ofappeal in the original Court. It is a stage that was reached only after anappeal had already been lodged. It presupposes the existence of anappeal. Once the notice of appeal was accepted by the original Court allfurther proceedings in the action (which would include execution pro-ceedings) were stayed – s.325. An analysis of the above provisions of theAdministration of Justice Law, No. 44 of 1973, shows that an appeal froma judgment was preferred by the lodging of a notice of appeal as providedfor in s. 318 whereupon execution proceedings, if any, were automaticallystayed.
The 1973 Code which was repealed by s. 2 of the Administration ofJustice (Amendment) Law, No. 25 of 1975, with effect from 01.01.1976was again revived and brought back into operation by virtue of theprovisions of sections 2, 3 and 4 of the Civil Courts Procedure (Special
Brooke Bond (Ceylon) Ltd. v. Gunasekera (Atukorale, J.)
Provisions ) Law, No. 19 of 1977, which came into operation on15.12.1977. The Civil Procedure Code (Amendment) Law, No. 20 of1977, which also came into force on the.same date, by s. 109 repealedsections 754 to 756 of the revived Code and substituted therefor 3 newsections. It also repealed S. 761 of that Code and substituted] therefor anew s.761 which I have reproduced at the beginning this judgment. Sub-sections (1) and (2) of the new s. 754 retained the distinction betweenjudgments and orders introduced by the said Law No. 44 of 1973. Sub-section (3) of this new section made provision for the lodging of an appealto the Supreme Court (now to the Court of Appeal) from the judgment ordecree of an original Court within such time and in the form and mannerthereafter provided. Although cast in different phraseology this sub-section is substantially the same as s. 318 of Law No. 44 of 1973. In myview it embodied the concept introduced by the latter section of preferringan appeal by the lodging of a notice of appeal. Sub-section (4) of this news. 754 and sub-sections (1) and (2) of the new s. 755 of the present Codestipulating the time within which and the form and manner in which thenotice of appeal has to be presented to the original court are identical withthe corresponding provisions of Law No. 44 of 1973 and the rules of Courtmade thereunder. As under those rules of Court, there is, under s. 755 (1),no requirement that the notice of appeal should contain the grounds ofappeal. Thus s. 754(2) and (3) of the present Code in effect did away withthe provisions contained in the 1973 Code for the preferring of an appealby way of, firstly, presenting a petition of appeal within 10 days and,secondly, furnishing security and making a deposit within 20 days. It s.754(3) and (4) and s. 755 (1) and (2) of the present Code stood bythemselves, adopting and embodying as they do in almost identical termsthe corresponding position under Law No. 44 of 1973 and the rules madethereunder, it would appear to be quite clear that an appeal to theSupreme Court (now to the Court of Appeal) has to be preferred bylodging the notice of appeal to the original Court within 14 days of the dateof delivery of the judgment or decree. Then there can be no doubt that theexpression ‘until after the expiry of the time allowed for appealing’ fromthe decree can but only mean until after the expiry of 14 days from the dateof the decree. If within this period an appeal is preferred by the judgement -debtor by duly giving notice of appeal, then the judgment-creditor isentitled, in terms of the Proviso to s, 761, to apply forthwith (even beforethe expiry of the 14 days) for execution of the decree. Has this legalposition in any way been altered by the provisions contained in s. 755 (3)of the present Code requiring every appellant to present to the original
Sri Lanka Law Reports
It990) t Sfi L.R.
court within 60 days from the date of the judgment or decree appealedagainst a petition of appeal setting out, inter alia, the grounds of objectionto such judgment or decree? It was argued before us by learnedPresident’s Counsel appearing for the defendant that the filing of thepetition of appeal constituted an essential step in the process of preferringan appeal, a process which is incomplete until and unless the petition isfiled. The grounds of appeal set out in the petition of appeal, it was urged,formed the essence and soul of an appeal. A decree, learned President'sCounsel maintained, became a decree appealed against only when boththe notice of appeal as well as the petition of appeal were tiled incompliance with the relevant sections. It was thus his contention that inthe instant case as the period of 60 days had not lapsed and no petitionof appeal had still been filed, the time allowed for appealing from thedecree of the District Court had not expired nor had an appeal beenpreferred therefrom at the time the application for execution was made.As the application had thus been made in contravention of the statutorybars imposed by s. 761, not only was its institution bad in law but also thecourt had no jurisdiction to entertain the same and as such the proceed-ings and the order made in pursuance thereof were a nullity.
It is doubtless correct, as submitted by learned President's Counsel,that under the present Code the petition of appeal is required to set outthe grounds of appeal and that it is upon its presentation that the originalcourt has to forward along with it, all the relevant papers and proceedingsto the Court of Appeal whereupon the Registrar has to number the petitionand enter the same in the Register of Appeals and to notify the same tothe parlies concerned, vide s. 756 (1). The position was different underthe corresponding section – s. 329 (1) – of Law No. 44 of 1973 accordingto which it was on the receipt of the notice ot appeal (there being noprovision thereunder lor the filing of a petition of appeal) that the Registrarhad to number the same and enter it in the Register of Appeals and tonotify the parties concerned of the same. However upon a close andcareful scrutiny of the relevant sections of the present Code both bythemselves and in the light of the statutory changes that had precededthem and which I have outlined earlier, I have formed the view that inascertaining, for the purposes of s.761, the time allowed for appealingfrom the decree and whether an appeal had been preferred therefrom,regard must be had solely to the lodging of the notice of appeal and notto the filing of the petition of appeal. In my view the plain and naturalmeaning of the simple and clear language in which s.754(3) of the present
Brooke Bond (Ceylon) Ltd.v. Gunasekera (Atukorale. J.)
Code is couched can admit of no doubt that an appeal is lodged orpreferred upon the due presentation of the notice of appeal as stipulatedtherein. As pointed out by me already this was the position under Law No.44 of 1973 which effected a clear and distinct change from that whichprevailed under the 1973 Code. Moreover no valid reason had beenadduced on behalf of the defendent as to why the legislature should haveextended the time allowed for appealing from 20 days under the 1973Code and 14 days under Law No. 44 of 1973 to as much as 60 days underthe present Code as urged by learned President’s Counsel. Nor is thereany cogent reason for depriving a judgment-creditor or decree-holder ofthe right and opportunity of initiating execution proceedings for a periodwhich, upon the contention of learned President's Counsel, may extendto as long as 60 days. S.761 should not be construed in such a way asto lightly interfere with a decree-holder’s right to reap the fruits of hisvictory as expeditiously as possible. Further it is the notice of appeal [thathas now to be duly stamped and not the petition of appeal] as under the1973 Code. The petition of appeal is now exempt from stamp duty. Afailure to present the notice of appeal in conformity with s. 754 (4) of thepresent Code debars the court from receiving it. But no such sanctionseems to attach to fhe failure to file the petition of appeal within 60 days.Nor is the appellate court in deciding an appeal confined to the groundsof objection set down in the petition of appeal – s.758(2). These factsindicate that the present Code attaches much more significance andemphasis to the notice of appeal than the petition of appeal. Theprovision contained in s,765 of the present Code enabling the Court ofAppeal to admit and entertain, in certain circumstances, a petition ofappeal from a decree of the original court although the provisions of s.754relating to the lodging of a notice of appeal have not been observedpostulates that the lodging of a notice of appeal in terms of s.754 istantamount to the filing of an appeal. All these facts and circumstancesshow unmistakably that the normal and regular appeal is by way oflodging a notice of appeal under s.754.
Learned Presidents s Counsel relied much on the decision of the Courtof Appeal in Careem and another v. Amerasinghe (1) to support hiscontention. In that case the Court of Appeal observing that the processof appealing now involved two stages, namely the first stage of givingnotice of appeal and the second stage of [the filing of the petition ofappeal,] held that there was no warrant in the language used in s.761 torestricting the time allowed for appealing to the first stage i.e. the giving
Sri Lanka Law Repons
11990] I Sri LR.
of notice of appeal within 14 days. The Court held that according to thescheme of the present Code an appeal was preferred only upon the filingof the petition of appeal. In reaching this conclusion the Court relied oncartain observations of Wanasundera J. in the judgment of the SupremeCourt in Vithane v. Weerasinghe and another (2). These observations ofWanasundera J. pertaining to the provisions relating to appeal weremade not in reference to the point arising for our consideration in theinstant case but in connection with the objection taken in that case thatthe petition of appeal not having been filed within 60 days the appeal wasbad as being out of time, an objection which was raised in and upheld bythe Court of Appeal which made order abating the appeal on the basis thatit was powerless to grant any relief. So that the primary, if not sole,question to which Wanasundera J. addressed his mind was in regard tothe nature of the scope and extent of the power of the Court of Appeal togrant relief, under s. 759(2), for lapses on the part of an appellant incomplying with the provisions pertaining to appeals. He held that its termswere wide enough to cover a case of non-compliance with the secondstage of the appellate procedure and that s. 765 which empowered theCourt of Appeal to admit and entertain an appeal notwithstanding lapseof time had no application to such a non-compliance and was limited onlyto the first stage. The Supreme Court held that the Court of Appeal in sucha case had the power to grant relief and was not obliged to abate theappeal as erroneously held by it. There are in the judgment of Wanasun-dera J. clear expressions which in fact support the position contended forby learned Queen’s Counsel for the plaintiff in the instant case. Forinstance in the second paragraph itself of his judgment Wanasundera J.,referring to the Civil Procedure Code (Amendment) Law, No. 20 of 1977,states:
“It now provides, in the first instance, for lodging an appeal bynotice of appeal within 14 days of the date of judgment." (theemphasis is added).
Again at page 56 in reference to sections 754 and 756 of the presentCode he states:
“The time limits in these two sections are in respect of, first thelodging of the appeal by giving notice of appeal and, second thefiling of an application for leave to appeal." (Emphasis is added).
Viewed in the light and context of the matter that arose for decision ofthe Supreme Court in that case and the passages quoted by me above,
Brooke Bond (Ceylon) Ltd. v. Gunasekera (Atukorale, J.)
I am of the opinion that when Wanasundera J. in the course of hisjudgment used expressions such as 'the present provisions relating toappeals" and 'the appellate procedure which obtains today” and ‘theprocess of appealing involving two stages" they cannot in any way betaken to have any relevance on the point arising for our consideration inthe instant appeal. These expressions have been used by him in thecourse of any analysis of the entire pre-hearing appellate procedure fromthe stage of presenting the notice of appeal up to the stage of filing of thepetition of appeal under the present Code and the stage of the lodging ofwritten submissions iri the Supreme Court under Law No. 44 of 1973which he observed was, in this respect, the forerunner of the appellateprocedure obtaining today underthe present Code. In the circumstancesI am, with respect, unable to agree that the judgment of Wanasundera
J.in Vithane v. Weerasinghe and Another (supra) is of much assistancein the determination of the question before us. I am of the view that thedecision of the Court of Appeal in Careem and Another v. Amerasinghe(supra) in so far as it holds that under s. 761 of the present Code noapplication for the execution of an appealable decree can be instituted bya judgment-creditor or entertained by a court until after the expiration of60 days (which is the time allowed for filing the petition of appeal) and thatan appeal is preferred against such a decree not upon the giving of noticeof appeal within 14 days in terms of s.754 (3) but upon the giving of suchnotice and the filing of the petition of appeal within 60 days as required bys. 755(3) is wrong and must be overruled. I held that for purposes of s. 761the time allowed for appealing from an appealable decree is 14 days (thetime allowed for the giving of notice of appeal) and that an appeal ispreferred against such a decree upon the lodging of the notice of appealwithin 14 days in terms of s.754(3).
In view of the above finding I do not think it necessary to refer to orconsider the other matters urged on behalf of the [plaintiff by learned]Queen’s Counsel such as, for instance, whether upon the facts andcircumstances of this case the revisionary powers of the Court of Appealcould be invoked or exercised for the grant of interim relief of the nature, sought for by the defendant is this case and whether it was open to thedefendant to raise, for the first time in the Court of Appeal, the questionof the competency of the District Court to entertain an application forexecution without having raised the same at the inquiry before the DistrictCourt.
Sri Lanka Law Repons
(19901 1 Sri L.R.
For the above reasons the appeal is allowed, the order of the Court otAppeal dated 10.6.1987 is set aside and the Application in Revision (No.614/87) pending in the Court ot Appeal is dismissed. The Court of Appealis also directed to accelerate the hearing of both appeals against thejudgment and decree of the learned District Judge dated 19.1.1987. Theplaintiff will be entitled to costs of this appeal fixed at Rs. 2100.
H. A. G. DE SILVA, J. – I agree.
Interim Order of Court of Appeal set aside.
Application in Revision dismissed.