002-SLLR-SLLR-2006-V-1-CHANDRAWATHIE-vs.-WIMALADASA-AND-OTHERS.pdf
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Sri Lanka Law Reports
(2006) 1 Sri LR.
CHANDRAWATHKVSWIMALADASA AND OTHERSCOURT OF APPEALAMARATUNGA, J ANDBALAPATABENDI.JCA(REV)1044/2001D.C. KULiVAPITIYA 11745/MJULY 29, 2002
Debt Conciliation Ordinance, sections 29,39, and 41 – Certificate obtained thatconditional transfer was a mortgage – Procedure to be followed in the DistrictCourt to get the property reconveyed – Is it regular or summary? – Civil ProcedureCode, section 8.
The petitioner-respondent obtained a loan from one ‘D’, having secured thedebt by a conditional transfer of immovable property. On an application madeto the Debt Conciliation Board, the petitioner respondent obtained a certificateunder section 29 of the Debt Conciliation Ordinance, to the effect that the saidconditional transfer was a mortgage.
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Chandrawathie vs Wimaladasa and Others (Amaratunga. J)
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The petitioner-respondent thereafter filed an application by way of summaryprocedure to get a decree nisi for the petitioner -respondent to get the propertyreconveyed. After inquiry, the decree nisi was made absolute.
The petitioner moved in revision.
HELD
Section 39 is the only section which provides for an action by thedebtor to obtain an order to re-convey a property in respect of which acertificate under section 29 of the Debt Conciliation Ordinance hasbeen issued. There is no procedure laid down for such an action.
An action for an order to reconvey a property conveyed by a conditionaltransfer to secure a debt has to be instituted by way of regularprocedure and not by way of summary procedure.
The whole procedure adopted by court to deal with the purportedapplication of the petitioner – respondent was irregular and illegal.
APPLICATION in revision against the order of the District Court of Kuliyapitiya.
Chula Bandara for petitioner
M. C. Jayaratne for petitioner- respondent
Cur.adv.vult
October 07, 2004GAMINI AMARATUNGA, J.
This is an application to revise and order made by the learned AdditionalDistrict Judge of Kuliyapitiya in a proceeding, purporting to be a proceedingunder the provisions of the Debt Conciliation Ordinance. The petitioner -respondent has obtained a loan of Rs.20,000 from one H. M. Dissanayake,having secured the debt by a conditional transfer of immovable propertybelonging to the petitioner – respondent. Thereafter, upon an applicationmade to the Debt Conciliation Board, the petitioner-respondent has obtaineda certificate under section 29 of the Debt Conciliation Ordinance to theeffect that the said conditional transfer was a mortgage.
By petition and affidavit dated 30.06.1997, the petitioner respondenthas filed an application by way of summary procedure by presenting apetition and affidavit to get a decree nisi for the petitioner – respondent toget the property re-conveyed to him by paying a sum of Rs.20,000. The
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caption to the petition states that it is an application under section 29 ofthe Debt Conciliation Ordinance. It is to be noted that the said section 29does not provide for presenting such an application to Court. At the timethe petitioner- respondent filed his application, the said Dissanayake wasdead and accordingly his wife and children were made respondents to theapplication Since the children of Dissanayake were minors, their mother,the present petitioner was appointed guardian-at-litem of the minors.
The learned Judge, having considered the petition filed by the petitioner- respondent has issued a decree nisi. After it Was served on the presentpetitioner she has filed her objections to the petitioner – respondent’sapplication. Thereafter, at the inquiry held by Court several witnesses havegiven evidence for the petitioner – respondent and the present petitionerhas given evidence on her own behalf. After the inquiry the learned Judgehas made order making the decree nisi absolute. This revision applicationis against that order.
The question to be decided in this revision application is whether therewas a valid legal proceeding before Court. The provision under which thepetitioner – respondent could have brought his action to get the propertyre-conveyed to him is section 39 of the Debt Conciliation Ordinance. Thesection reads as follows.
‘Where a certificate has been granted under this Ordinance in respectof a debt secured by a conditional transfer of immovable property andsubsequent to the granting of that certificate an action is instituted inany Coutf .for the recovery of that property, the Court (a) may,notwithstanding that the title to that property has vested in the creditorin relation to that debt, make such appropriate orders as are necessaryto re-convey title to, and possession of that property to the debtor, inrelation to that debt, on the payment by the debtor of the debt togetherwith the interest thereon in such installments and within such periodnot exceeding 10 years, as the Court thinks fit”.
Section 39 is the only section which provides for an action by thedebtor to obtain an order to re-convey a property in respect of which acertificate under section 29 of the Debt Conciliation Ordinance hasbeen issued. There is no procedure laid down for such an action. Section8 of the Civil Procedure Code enacts that “Save and except actions inwhich it is by this Ordinance or any other law specially provided thatproceedings may be taken by summary procedure, every action shall
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commence and proceed by a course of regular procedure, as hereinafter
prescribed”.
Thus, in the absence of any reference to summary procedure in section.39, an action for an order to re-convey a property conveyed by a conditionaltransfer to secure a debt has to be instituted by way of regular procedure.The petitioner respondent’s action had been filed under summary procedure.Therefore, that action had not been properly filed according to the properprocedure. As such the decree nisi had been improperly issued andaccordingly has no force as a decree nisi. In the result, the order of Courtmaking the decree nisi absolute is a nullity. Section 45 of the DebtConciliation Ordinance, under which the District Court dealt with thepetitioner – respondent’s application has no application to the action asthat section dealt with an action by a creditor to enforce a settlement. Thewhole procedure adopted by Court to deal with the petitioner – respondent’s'purported application was irregular and illegal and accordingly allproceedings taken in D. C. Kuliyapitiya case No. 1.1745 were null and voidand were incapable of producing any legally binding decree. I accordinglyallow this revision application and quash all proceedings in the purportedaction including the decree nisi and the decree absolute. The petitioner isentitled to Rs.7,500 as costs of this application.
BALAPATABENDIJ.-1 agree.
Application allowed.