002-SLLR-SLLR-2006-V-2-DISSANAYAKE-vs.-HEMANTHA.pdf
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Sri Lanka Law Reports
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DISSANAYAKEVSHEMANTWACOURT OF APPEAL.
SOMAWANSA, J. (P/CA) AND.
W1MALACHANDRA, J.
CALA 404/2004.
DC GALLE 427/RE.
JULY 6, 2005.
Civil Procedure Code, section 5,24,27(2), 29, 763, 763(1)-Notice of application
for writ of execution served on the Registered Attorney and not on the defendant
– Is it sufficient ?-Rule of Audi Alteram Partem.
HELD:
Section 5 of the Civil Procedure Code is defined to mean an Attomey-at-Law appointed by a party or his recognized agent to act on hisbehalf. Section 27(2) provides that once an appointment of a registeredattorney to make any appearance/application or to do any act asprovided in section 24 has been made and is duly filed in Court, it shallbe in force until all proceedings in the action are ended and judgmentsatisfied and once a proxy is given to a registered attorney by a party,the party himself cannot without revoking the proxy perform in personany act in Court.
Notice of application for writ of execution on the registered attorneyshall be effectual as if the same had been served on the defendant inperson.
APPLICATION , for leave to appeal from an order of the District Court of Galle.
Cases referred to:
Seelawathie vs. Jayasinghe 1985 2 Sri LR 266
Manamperi Somaratne vs. Buwaneswari 1990 Sri LR 223
Kandiah vs. Vairamuttu-6 NLR 1
Rasiah vs. Ran Hamy and Other 1978-79 2 Sri LR 88
CA
Dissanayake vs
Hemantha (Wimalachandra, J.)
13
Ikram Mohamed, PC with H. M. Aththidiya for defendant judgment-debtor-respondent-appellant.
Harsha Soza, PC with Srihan Samaranayake for plaintiff-judgment-creditor-petitioner-respondent.
Cur. adv. vult.
May 5.2006.
WIMALACHANDRA, J.This is an application for leave to appeal filed by the defendant-judgment-debtor-respondent-appellant (defendant) from the order of thelearned Additional District Judge of Galle dated 28.10.2004. However itappears from the prayer to the petition that the defendant is also seekingto have the order dated 30.08.2004 set aside.
The defendant has filed this leave to appeal application on 01.11.2004.The question arises therefore whether the aforesaid order dated 30.08.2004could be set aside by these proceedings. In terms of section 757(1) of theCivil Procedure Code, a leave to appeal application shall be presented tothe Court of Appeal by the party appellant or his registered Attorney withina period of fourteen days from the date when the order appealed againstwas pronounced, exclusive of the day of that date itself, and Sundays andpublic holidays. In these circumstances the leave to appeal applicationcannot be maintained against the order dated 30.08.2004. Accordingly,the said order dated 30.08.2004 cannot be set aside in these proceedings.Hence, this application for leave to appeal can only be maintained againstthe order of the learned Additional District Judge dated 28.10.2004.
Briefly, the facts as set out in the petition are as follows :
The plaintiff-judgment-creditor-petitioner-respondent (plaintiff) institutedthis action bearing No. RE/427 in the District Court of Galle to eject thedefendant from the premises in suit. After trial, judgment was entered infavour of the plaintiff on 03.08.2004 for the ejectment of the defendant andfor damages at Rs. 5000 per month from 01.05.1997. The defendant appealedagainst the judgment to the Court of Appeal. Pending the appeal the plaintifffiled an application for the execution of the decree with a motion movingthat the case be called on 30.08.2004, to support the said application,
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and posted a copy of the said motion with a set of copies of the documentsto the registered Attomey-at-Law of the defendant-appellant On 30.08.2004when the case was called for the plaintiff to support the said application forthe execution of the decree pending appeal, the learned judge made orderallowing the plaintiff's application to issue a writ of execution of the decree,observing that the defendant was absent even though notice had beenissued on him. On 13.09.2004 the case was called on an applicationmade by the Attomey-at-Law for the defendant to explain to Court that thewrit of execution of the decree had been issued without issuing notice tothe defendant to show cause against the application made for the executionof the decree pending appeal. The learned District Judge, after consideringthe submissions made by both parties made order on 28.10.2004 rejectingthe application made by the defendant to vacate the stay order holdingthat on the facts and circumstances of the case the plaintiff is entitled toexecute the decree pending appeal.
The questions for determination before this Court are as follows:
Has notice of the plaintiff’s application for writ of execution of thedecree pending appeal been served on the defendant ?
If not, can writ be issued against the defendant ?
It is common ground that notice of the application for writ of executionwas served on the registered Attomey-at-Law of the defendant and thereis no proof that notice was served on the defendant. Admittedly, thedefendant nor his Attorney-at-Law was present in Court on 30.08.2004and as there was no opposition to the plaintiff’s application, the learnedDistrict Judge correctly made order allowing the plaintiff’s application andissued the writ.
The President1 s Counsel for the plaintiff submitted that the notice servedon the defendant’s registered Attorney-at-Law was sufficient notice to thedefendant. According to the marginal notes to section 763 an applicationfor execution of decree pending appeal must be on notice to the judgment-debtor. When the judgement-creditor makes an application for executionof a decree which is appealed against, the judgment-debtor must be madethe respondent. Section 763 merely requires that the judgment-debtor bemade a respondent. However the necessity to give notice arises in view of
CADissanayake vsis
Hemantha (Wimalachandra, J.)
the requirement in section 763(1) that the judgment-debtor must be madethe respondent.
This is mainly to observe the principle of audi alteram partem. In theinstant case it is not in dispute that the plaintiff had given notice to thedefendant’s registered Attorney-at-Law and the notice had been receivedby the defendant’s registered Attorney-at-Law. The question that arises iswhether the notice served on the defendant’s registered Attorney-at-Lawis for all purposes sufficient and valid as if the notice has been served onthe defendant.
Section 24 of the Civil Procedure Code states that any appearance,application or act in or to, any Court, required or authorized by law to bemade or done by a party to an action or appeal in such Court may bemade by an Attorney-at-Law duly appointed by the party or his recognizedagent to act on behalf of such party.
In the case of Seelawathie vs. Jayasinghe<1) the Court of Appeal madethe following observations:
“It is a recognized principle in Court proceedings thatwhen there is an Attorney-at-law appointed by a party,such party must take all steps in the case through suchAttorney-at-law.”
In the case of Manamperi Somawathie Vs. Buwaneswari® Senanayake,
J.held the registered Attorney-at-Law defined in section 5 of the CivilProcedure Code, to mean an attorney-at-Law appointed by a party or hisrecognized agent to act on his behalf.
Section 27(2) provides that once an appointment of a registered Attorneyto make any appearance or application or to do any act as provided insection 24 has been made and is duly filed in Court, it shall be in forceuntil all proceedings in the action are ended and judgment satisfied so faras regards the client.
It was held in the case of Kandiah Vs. VairamuttuP) once a proxy isgiven to a proctor by a party, the party himself cannot without revoking theproxy perform in person any act in Court.
2- CM 8090■
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In the case of Manamperi Somawathie vs. Buwaneshwari (supra) it washeld that when a party gives a proxy to an Attomey-at-Law it remains inforce until revoked with leave of Court after written notice to such registeredattorney. The proxy so filed is binding on the party until the party dies oruntil all proceedings in the action are ended and judgment satisfied so faras regards the party. Once a registered Attorney is on record the partycould necessarily act only through the registered Attorney.
Section 29 of the Civil Procedure Code has dearly stated that serviceon the registered Attorney shall be as effectual for all purposes in relationto the action or appeal as if the same had been given to, or served on theparty in person.
The effect of section 29 of the Civil Procedure Code is discussed inRasiah vs. Ranhamyand Others1*'.
“The Supreme Court (as formerly constituted) made orderthat a certain sum of money be deposited by the appellantwithin she weeks. The Registrar of the court issued noticeboth on the appellant and on his attorney-at-law but onlythe notice on the attorney-at-law was served. The orderto deposit the said sum was not complied with and theappeal was accordingly abated. In making an applicationto have the appeal reinstated it was submitted on behalfof the appellant that notice should have been served onthe appellant.
It was held in this case, that in terms of section 29 of theCivil Procedure Code, a notice served on the attorney-at-law for the appellant was sufficient notice to the Appellantand accordingly the appeal was rightly abated.”
In the instant case, admittedly the notice had been served on theregistered Attomey-at-Law of the defendant with regard to the applicationmade by the plaintiff for writ of execution of the decree pending appeal andthat it was to be supported in Court on 30.08.2004. However, neither thedefendant nor his registered Attomey-at-Law made any appearance inCourt on 30.08.2004.
CA
Piyadasa and Another vs.
Babanis and Another
17
All that the registered Attorney-at-Law of the defendant had to do on30.08.2004 was to appear in Court and move for a date to file objections orinform Court that he had no instructions from his client and move Court toissue notice on the defendant himself. In the circumstances the defendantcannot now challenge that the order made by the Court on 30.08.2004was wrongly made. Accordingly, the order made by the learned DistrictJudge is correct.
For these reasons, I am of the view that the notice served on thedefendant’s Attorney-at-Law shall be as effectual as if the same had beenserved on the defendant in person. I further hold that the order made by thelearned judge on 28.10.2004 is correct and the defendant is not entitled tofile an application for leave to appeal against the said order dated28.10.2004. Accordingly, I dismiss the defendant’s application for leave toappeal with costs fixed at Rs. 10,500.
SOMAWANSA, J. (P/CA) – / agree.
Application dismissed.