121-NLR-NLR-V-70-C.-P.-J.-SENEVIRATENE-Applicant-R.-M.-MUTHUBANDA-Party-Noticed.pdf
574
TENNEK.OON, J.—Sen^iratne v. Muthubanda
1967Present : Tennekoon, J.
C. P. J. SENEVIRATNE, Applicant, and R. M. MUTHUBANDA,
Party Noticed
Parliamentary Election for Electoral District No. 120 (Mahiyangana)holden on 22nd March 1965—Application for examination of thePetitioner under section 219 of the Civil Procedure Code
Election petition—Execution proceedings for recovery of costs—Jurisdiction of anysingle Judge of the Supreme Court—Civil Procedure Code, ss. 219, 776 (4),777—Parliamentary Elections Order in Council, ss. 7SB, S2A (5), 82B (i) (4)—Parliamentary Election Petition Rules 2, 33 (1).
Where the Judge who heard an election petition is functus officio, proceedingsfor the recovery of costs awarded by him, and by the Supreme Court on appeal,in favour of the petitioner may be taken before any single Judge of theSupreme Court notwithstanding that such Judge does not happen to be theElection Judge who was nominated to hear the election petition. Executionproceedings in relation to an order for costs are interlocutory matters withinthe meaning of section 78B of the Parliamentary Elections Order in Council.
Election petition in respect of election for Electoral DistrictNo. 120 (Mahiyangana). Application for examination of the petitionerunder section 219 of the Civil Procedure Code.
N.C. J. Rufttomjee, with D. 8. Wijewardene, for the respondent-applicant.
S. S. Sahabandu, for the petitioner (the party noticed).
Cur. adv. vult.
October 21, 1967. Tennekoon, J.—
The party noticed was the petitioner in an Election Petition in whichthe applicant was the respondent. A sum of Rs. 6,000 had beendeposited by the party noticed as security at the time of filing theElection Petition. That petition was after trial dismissed with costs bythe Election Judge. An appeal was taken to the Supreme Court undersection 82A of the Ceylon (Parliamentary Elections) Order in Council(Chapter 381); that too was dismissed with costs. Costs of the trial havebeen taxed by the Registrar of the Supreme Court at Rs. 6,681 ‘64. Aftersetting off the sum of Rs. 5,000 against costs from the security deposited,there is still due a sum of over Rs. 1,681 64 due from the party noticed tothe applicant in regard to the costs of the Election Petition prior to theappeal. The costs of appeal have been taxed at Rs. 2,849-00 and thetotal amount now due as costs is Rs. 4,530 64. The applicant hasmoved that the party noticed be examined under section 219 of the CivilProcedure Code and *vhen the matter came up before m^Counsel for tfceparty noticed took objection to my dealing with this application on theground that any proceedings in regard to the execution of an order for
TENNEKOON, J.—SenernrcUne v. Muthubanda
575
m*—m
costs in an Election Petition can only be had before the Election Judgewho heard the Election Petition upon the nomination made by hisLordship the Chief Justice and cannot be had before a Judge of theSupreme Court who had no other qualification to deal with the matterother than that of being a Judge of the Supreme Court. The ElectionJudge in this case was Mr. L. B. de Silva who is no longer a Judgeof the Supreme Gourt having retired about 18 months ago.
After hearing Counsel for the party noticed and the applicant Ioverruled the objection and directed that the examination of theparty noticed be done before me on the 19th of October. I now setout my reasons for taking the view that these proceedings can be hadbefore a single Judge of the Supreme Court who is not also the Election*Judge nominated to hear the Election Petition.
The submission of Counsel for the party noticed is that while Rule33 (1) of the Parliamentary Election Petition Rules which reads—
“ Costs when taxed may be recovered in the same manner as costsof an action at law ”
contemplates the application of those provisions of the Civil ProcedureCode which relate to the execution of a decree to pay money, any expressor implied reference to ‘ the judge ’ or ‘ the court ’ in those provisions canhave reference only to the Election Judge. He refers to the definition ofthe term ‘Judge’ in rule 2 of the Election Petition Rules which is to theeffect that unless the context otherwise requires the term ‘Judge’ whenused in the rules means the Election Judge. Counsel further submitsthat this meaning must be carried across to the provisions of the CivilProcedure Code when applied to election petitions for the purposes ofrecovery of costs and accordingly the term ‘ court ’ appearing in thosesections can only have reference to the Election Judge who heard theElection Petition.
This submission somewhat ignores the fact that there was in this casean appeal to the Supreme Court from the determination of the ElectionJudge and having regard to the provisions of subsections (1) and (4) ofsection 82B of the Order in Council, the Supreme Court in dismissing theappeal must be taken to have affirmed both the determination of theElection Judge and also the order for costs made by the latter ; on theprinciple applied in Sinno Appu v. Andiris etal. xthat a decree of a lowercourt affirmed in appeal becomes the decree of the Supreme Court, the■whole of the costs payable by the party noticed are now referable to anorder of the Supreme Court and no part of it is based on the order of theElection Judge.
Sub-section (4) of section !S2B of the Order in Council provides that —
“ the provisions of the Third Schedule as to the award, taxation andrecovery of costs shall mutntis mutandis apply in relation to the awardof^uch costs*by^he Supreme Court and recovery thereof. ”•
1 {ID 10) 13 N. L. R. 297.
576
TENNEKOON, J.—Seneviratne v. Muthubanda
%••
One is thus again driven back to Rule 33 (1) of the Election Potion Rules(contained in the Third Schedule) which provide for the recovery oftaxed costs “ in the same manner as costs in an action at law It wasnot contended by Counsel for the party noticed that the decision of theSupreme Court on appeal from an Election Petition must be returned tothe court of first instance under section 776 (4) of the Civil ProcedureCode or that the provisions of section 777 of that Code have any appli-cation here. These provisions though appearing in a Code dealing withprocedure, in substance enlarge the power and jurisdiction of originalcourts so as to enable them to execute decrees of the Supreme Court inappeal from such original courts. The words “ in the same manner ”in Rule 33 (1) are not apt to invest an Election Judge with the powersgiven to original courts by section 777 of the Civil Procedure Code.
It seems to me therefore that this is a case in which any proceedingsfor the execution of the order for costs must be taken before t he SupremeCourt itself.
^ It is true that section 82 A (5) provides that any appeal from the deter-mination of an Election Judge shall be heard by three Judges of the• Supreme Court. This provision cannot be read as prescribing the numberof Judges that would be necessary to constitute a bench of the SupremoCourt to deal with matters arising in execution of an order for costsmade by the Supreme Court in appeal. There is however section 78B ofthe Order in Council which reads as follows :—
“ Unless otherwise ordered by the Chief Justice all interlocutorymatters in connexion with an election petition may be dealt with anddecided by any Judge of the Supreme Court.”
The only question that then arises is whether execution proceedings,whether they be in relation to an order for costs by the Supreme Court inappeal or in relation to an order for costs by an Election Judge can beregarded as an £ interlocutory matter in connexion with an ElectionPetition’. Counsel for the party noticed conceded that there are manycases in which the term f interlocutory ’ has been applied to incidentalproceedings arising after the rights of the parties in the case are finallydisposed of in what might be called the main or final judgment ordetermination. It is sufficient to refer to the cases of Manchohamy v.Appuhamy1, Eyerton v. Shirty2 and Jan Sivgho v. Abeywardene 3 insupport of that proposition.
I am accordingly of opinion that the examination under section 219 of
the Civil Procedure Code of the part}' noticed is an interlocutory matter
in connexion with an Election Petition within the meaning of section 78B
of the Ceylon (Parliamentary Elections) Order in Council and may be
had before a single Judge of the Supreme Court notwithstanding that
such Judge does not happen to be the Election Judge who had been
nominated to hear the Election Petition.
•
1 (1906) 8 N. L. R.
807.
* (1960) 51 N. L. R. 368.
Ap§ilicf tio)i allowed.(1945) 1 K. B. 107.
2