007-SLLR-SLLR-2006-V-3-DHARMAWANSA-vs.-PEOPLES-BANK-AND-ANTHER.pdf
CA
Dharmawansa vs. People’s Bank and Another
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DHARMAWANSAVS.PEOPLE’S BANK AND ANOTHERCOURT OF APPEAL.
SOMAWANSA.J (P/CA),
WIMALACHANDRA. J.
CA 269/2000(Rev.)
DC POLONNARUWA DR/13/96.
OCTOBER 01. 2003.
FEBRUARY 22, 2005.
Debt Recovery (Special Provisions) Act, No. 02 of 1990 amended by Act,No. 9 of 1994 section 5, section 13, section 13(1), section 16 – Decree nisimade absolute – Operates as a writ of execution – Civil Procedure Codesection 225(3), section 337 – No right of appeal against decree absolute ?- Is the writ of execution valid only for three years 7 – Is the decree absolutevalid for only 3 years ? – Procedure to be followed^ when the writ is notexecuted within the 3 year period ? – Inherent power of Court to reissue writ.
The plaintiff-respondent (Bank) instituted action under the provisionsof the Debt Recovery Law, The Court entered decree nisi. The 1 st defendant-petitioner’s objections to the decree nisi being made absolute were rejectedand decree nisi was made absolute on 13.11.1996. The 1st defendant-petitioner appealed against the said order. The Court issued the writ ofexecution of the decree on 01.03.2000.
The defendant-petitioner moved in revision and contended that –
A writ of execution is automatically stayed once an appeal isfiled.
When the decree nisi was made absolute – which is deemed tobe a writ of execution – it is valid only for a period of three yearsfrom the date of decree absolute (13.11.1996).
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HELD:
In terms of section 13(1) of the Act it is specifically stated that wherea decree nisi entered in an action instituted under the Debt RecoveryAct is made absolute, it should be deemed to be a writ of executionduly issued to the fiscal in terms of section 225 of the Civil ProcedureCode.
Section 13(1) of the Act states that notwithstanding anything to thecontrary in any other written law, the execution of same shall not bestayed.
The provisions of the Act do not provide for an express right ofappeal ; however section 16 has recognized the right to make anapplication for leave to appeal from an order made in the course ofany action instituted under the Act-in terms of section 16 whereleave is granted the proceedings in the District Court shall not bestayed, unless the Court of Appeal directs otherwise.
Nowhere in the Debt Recovery Act does it say that the decreeabsolute is valid only for three years.
Section 13(2) states that the writ of execution – section 13(1) – shallbe valid for a period of three years from the date on which thedecree nisi was made absolute; it does not mean that the decreeabsolute is valid only for three years. It means that the writ ofexecution is valid for three years. Every decree is valid till it is setaside by the Appellate Courts.
According to section 13 the procedure applicable to execution ofwrits under the Debt Recovery Act is the Civil Procedure Code.Therefore after the lapse of three years, the plaintiff can make anapplication for re-issue of the writ to the fiscal. The Court hasinherent power to re-issue the writ if the writ is not executed withinthe time allowed for execution.
There is nothing in the Civil Procedure Code which prevents asubsequent application for the execution of the writ.
CA
Dharmawansa vs. People's Bank and Another
(Wimalachandra, J.)
47
In the instant case decree absolute was entered on 13.11.1996.The fiscal did not execute the writ within the period of three years.The plaintiff thereafter made an application on 09.02.2000 to getthe writ executed-the defendants were fully aware of this application.There is no illegality in the said order allowing writ.
APPLICATION in revision from an order of the District Court ofPolonnaruwa.
Cases referred to:
Gurusamy Pulle vs. Mara Lebbe- 17 NLR 467
Samad vs. Zain – Bar Journal 1981 Vol. 1 – page 196.
K. S. Tilakaratne for 1 st defendant-appellant-petitioner.
Rohan Sahabandu for plaintiff-respondent-respondent.
Cur.adv. vult.
April 28, 2006.
WIMALACHANDRA, J.This is an application in revision filed by the 1 st defendant-petitioner(1st defendant) from the order of the learned District Judge ofPolonnaruwa dated 01.03.2000.
The plaintiff-respondent bank (plaintiff), instituted action under theprovisions of the Debt Recovery (Special Provisions) Act, No. 2 of 1990as amended by Act No. 9 of 1994. It is common ground that the 1stdefendant sought a loan of Rs. 800,000 on 14.10.1994 which wasgranted by the plaintiff-bank. As security the 1st defendant gave apromissory note. Admittedly the 1st defendant failed to re-pay theloan he borrowed from the plaintiff-bank. The bank filed action underthe Debt Recovery Act to recover the said loan.
The Court entered the decree nisi and ordered that it be served onthe defendants in the manner provided in section 5 of the aforesaid
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Debt Recovery (Special Provisions) Act. On receipt of the copy of thedecree nisi the 1st defendant filed petition and affidavit to obtain leavefrom Court to appear and show cause against the decree. It is to benoted that the 1st defendant has not filed in the Court of Appeal a copyof his petition and affidavit filed by him in the District Court to obtainleave from Court to appear and show cause and also he has not filedthe proceedings of the inquiry held in respect of the application madeby him to obtain leave to appear and show cause against the decreenisi entered against him. Furthermore, he has not filed the copies ofthe relevant journal entries in the District Court record as well.
It appears that the learned Judge had considered the affidavit of the1 st defendant in making the impugned order. I am of the view that thepetition and affidavit filed by the 1 st defendant in the District Court arenecessary to understand the order made by the learned Judge on13.11.1996. The learned Judge having perused the objections raisedby the 1 st defendant by his petition and affidavit had overruled themand had also made the observation that the defendants have admittedthat they have obtained the loan facilities from the plaintiff bank andalso the admission made by them that they have failed to repay theloan facilities. The learned Judge after considering the objection raisedby the defendants in their affidavits had overruled them and made thedecree nisi, absolute by his order dated 13.11.1996. In terms of section13 of the Debt Recovery (Special Provisions) Act as amended by Act,No. 9 of 1994, once the decree nisi is made absolute it is deemed tobe a writ. Section 13(1) of the Debt Recovery (Special Provisions) Actas amended by Act, No. 9 of 1994 states as follows :
"Subject to orders of Court where a decree nisientered in an action instituted under this Act ismade absolute, it shall be deemed to be a writ ofexecution duly issued to the Fiscal in terms ofsection 225(3) of the Civil Procedure Code andnotwithstanding anything to the contrary in anyother written law, the execution of the same shallnot be stayed.”
Dharmawansa vs. People’s Bank and Another
(Wlmalachandra, J.)
49
CA
Therefore it is clearly seen that once the decree nisi is made absoluteit shall operate as a writ of execution duly issued to the Fiscal interms of section 225(3) of the Civil Procedure Code. In thecircumstances, all the material placed before the learned Judge whichwould have influenced the learned Judge to make the order nisi,absolute are necessary to understand the order canvassed by the 1stdefendant and to place it in its proper context. In this application the1st defendant has challenged the order issuing the writ. As I statedabove the 1st defendant has failed to file copies of the petition andaffidavit filed by him to show cause against the decree nisi which arenecessary documents to understand the impugned order.
In the instant case the 1 st defendant has not even made any attemptto comply with Rule 3(1), at least by furnishing certified copies of theaforesaid documents. Accordingly, in my view on this ground alonethe 1 st defendant's application should be dismissed.
The 1st defendant has appealed against the order dated 13.11.1996whereby the decree nisi was made absolute. The Court issued the writof execution of the decree, on 01.03.2000. It is against this order, thisapplication in revision has been filed.
The 1st defendant in his written submissions has taken the followinggrounds of objections:—
A writ of execution is automatically stayed once an appealis filed.
When the decree nisi is made absolute, which is deemedto be a writ of execution, it is valid only for a period of threeyears from the date on which the decree nisi was madeabsolute.
I shall now examine the aforesaid grounds of objections raised bythe 1st defendant. In terms of section 13(1) of the Debt Recovery(Special Provisions) Act as amended by Act, No. 9 of 1994 it is
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specifically stated where a decree nisi entered in an action institutedunder this Act is made absolute, it shall be deemed to be a writ ofexecution duly issued to the Fiscal in terms of section 225(3) of theCivil Procedure Code. That means the decree absolute operates as awrit of execution. Section 13(1) of the Act further states thatnowithstanding anything to the contrary in any other written law, theexecution of the same shall not be stayed.
It is to be observed that the provisions of the Act do not provide anexpress right of appeal to a party aggrieved by a decree absoluteentered by Court. However, section 16, as amended by Act, No. 9 of1994 has recognized the right to make an application for leave to appealfrom an order made in the course of any action instituted under theAct. In terms of section 16, notwithstanding anything to the contraryin any other law, where leave to appeal is granted on an applicationmade in respect of an order made in the course of any action institutedunder this Act, proceedings of the original Court shall not be stayedunless the Court of Appeal directs otherwise. In the circumstancesthe 1 st defendant’s contention that once an appeal is lodged the writis stayed is entirely misconceived.
The next complaint of the 1 st defendant is that in terms of section13(2) of the Act the writ of execution referred to in section 13(1) is validonly for a period of three years from the date on which the decree nisiwas made absolute. Accordingly, the 1 st defendant contends that thewrit of execution had lapsed as from 12.11.1999 as the decree nisihad been made absolute on 13.11.1996. This contention of the 1stdefendant is untenable for the following reasons.
Nowhere in the Debt Recovery (Special Provisions) Act does it say .that the decree absolute is valid only for three years. When section13(2) states that the writ of execution referred to in section 13(1) shallbe valid for a period of three years from the date on which the decreenisi was made absolute it does not mean that the decree absolute isvalid only for three years. It means that the writ of execution is valid for3 years. Every decree is valid till it is set aside by the Appellate Courts.
CA
Dharmawansa vs. People's Bank and Another
(Wimalachandra, J.)
51
According to section 13 of the Act, it seems to me that the procedureapplicable to execution of writs under the Debt Recovery (SpecialProvisions) Act is the Civil Procedure Code. Therefore after the lapseof three years the plaintiff can make an application for re-issue of thewrit of the Fiscal. The Court has the inherent power to re-issue the writif the writ cannot be executed within the time allowed for execution.There is nothing in the Civil Procedure Code which prevents asubsequent application for the execution of the writ. It was held in thecase of Guruswamy Pulle vs. Afeera Lebbe <1> that when a writ cannotbe executed within the time allowed for execution by the Court, theproper course is for the Fiscal or the execution-creditor to move forand obtain an extension of time rather than for the Fiscal to return thewrit to Court and to secure a re-issue thereof. It was also held that theCourt has inherent power to extend the time fixed for the execution ofits own process.
In the instant case the decree absolute was entered on 13.11.1996which decree was a writ of execution issued to the Fiscal and itremained to be executed for three years. However, the Fiscal did notexecute the writ within the period of three years. Hence the plaintiffmade an application on 09.02.2000 to get the writ executed. Whenthis application was made all three defendants were present in Courtand were represented by their Attorney-at-Law. (Vide J. E. No. 12dated 09.02.2003). Accordingly, the defendants were fully aware of theapplication made by the plaintiff to get the writ executed by the Fiscal.It appears that when the aforesaid application was made by the plaintiff,the defendants did not challenge the said application. Where anapplication for writ is allowed once, but no writ is taken out, asubsequent application could be made for the execution of the writ interms of the provisions of section 337 of the Civil Procedure Code. Itwas held in Samad vs. Za/n(2) that section 337 has to be broadlyinterpreted and should not be interpreted unduly harshly so as to denyrelief for judgment creditor.
In these circumstances, I am of the view that there is no illegality inthe order made by the learned District Judge and in the present case
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there are no exceptional circumstances disclosed for relief to be grantedby way of revision. Revisionary powers should normally be exercisedwhere a miscarriage of justice has occurred due to a fundamental ruleof procedure being violated. In the present application, I cannot seeany miscarriage of justice that has occurred which would have causeda denial of justice to the 1st defendant.
For these reasons, I dismiss the 1st defendant’s application inrevision with costs fixed at Rs. 15,000.
ANDREW SOMAWANSA, J. (P/CA). – / agree.
Application dismissed.