007-NLR-NLR-V-79-2-E.-CHELLIAH-Defendant-Appellant-and-Mrs.-P.-J.-JANSZ-Plaintiff-Respondent.pdf
WI2IALARATN2S, —ChcUiah v. Jansz
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1978Present: Wimalaratne, J., Udalaganza, J. and
Walpita J.'
CHELLIAH, .Defendant-Appellantand
Mrs. P. J. JANSZ. Plaintiff-Respondent
S.C. 60/77 {Inty)—D.C. Colombo 418/ED
Civil Procedure Code, sections 761, 763—Administration of JusticeLaw, No. 44 of 1973, section 325 (I)—Action under section 27of Rent Act, No. 7 of 1972—Judgment entered for plaintiff—Application for stay of execution pending appeal—Civil CourtsProcedure (Special Provisions) Law, No. 19 of 19 77—CivilProcedure Code (Amendment) Law, No. 20 of 1977—Effect onapplication for stay—Just and reasonable order—Applicability ofprovisions of section 7 of Law No. 19 of 1977.
In an action instituted under the provisions of section 27(1) ofthe Rent Act, when judgment had been entered for the plaintiffthe defendant gave notice of appeal under section 325(1) of theAdministration of Justice Law, No. 44 of 1973, and moved thatproceedings in execution be stayed pending the determination ofthe appeal. The learned District Judge refused this application andthe defendant appealed from that order. In the meantime theAdministration of Justice Law was repealed and the Civil ProcedureCode had come into operation once again (with effect from 15thDecember 1977) .and its provisions in terms of section 4(1) of fileCivil Courts Procedure (Special Provisions) Law, No. 19 of 1977,were for all purposes deemed to be and to have been in operationas if the Civil Procedure Code had not been repealed earlier.There was accordingly now no provision for automatic stay ofproceedings pending appeal.~ ~~“
Held : That having regard to the provisions of section 27(5) of theRent Act and the provisions of the Civil Procedure Code(Amendment) Law, No. 20 of 1977, a just and reasonable order insuch a case would be that the plaintiff before writ of ejectment isexecuted, do furnish security for the due performance of the orderof the Court in the main appea1. Section 7 of Law No. 19 of 1977made provision for such an order.
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WlJIAhAltATiSiJi;, J.—'JlielUali a. .lunsz
^_PPEAL from a judgment of the District Court, Colombo.
R. P. Gooneiillake, for the defendant-appellant.
L. V. R. Fernando, for the plaintiff-respondent.
Cur. adv. vult.
March 31, 1978. Wimaxaraine, J.
The plaintiff-respondent instituted this action under theprovisions of section 27(3) of the Rent Act, No. 7 of 1972, andobtained judgment on 19.9.77 for the ejectment of the defendant-appellant from the ground floor of premises No. 11, CollegeStreet, Colombo 13, and for arrears of rent amounting toRs. 1,452.19. The defendant gave notice ,cf appeal on 22.9.77, andalso moved that proceedings in execution be stayed, in texms ofsection 325(1) of the Administration of Justice Law, No. 44 of1973, until the determination of the appeal. The learned DistrictJudge, by his order dated 6.12.77, has refused the application for
stay of execution of the decree for delivery of possession, andhas directed that writ of possession be issued in terms of section27(21 (b) of the Rent Act.
Section 27 (51 of the Rent Act provides that “ where an orderunder sub-section (2) is issued to the Fiscal by a court, theexecution of such order shall not be stayed in any manner byreason of any steps taken or proposed to be commenced in anycourt with a view to questioning, varying or setting aside suchorder ”. The learned District Judge has taken the view that theabove provision is special legislation which is not effected by thegeneral words contained in the later- statute, namely section325(1) of the Administration of Justice Law, which is to theeffect, that “ upon the notice of appeal being accepted by court,all proceedings in such action shall be stayed.”
The effect of section 325(1) of the Administration of JusticeLaw need not now be considered because that section is no longerlaw, by reason of section 4(1) of the Civil Courts Procedure(Special Provisions) Law, No. 19 of 1977 (which came into forceof 15.12.77) in terms of which “ the provisions of the Civif
WIMALAKATNE, J.—CheUiah. v. Jansz
a 7
Procedure Code shall for all purposes, be deemed to be, and tohave been, in operation as if the same had not been repealedand shall continue to be the law governing the procedure andpractice in civil courts “ Civil Procedure Code ” in section 4means the “ Civil Procedure Code ” as amended from time totime, and in force on December 31, 1973.
Now, the Civil Procedure Code in force on 31.12.73 did notmake provision for the automatic stay of proceedings pendingan appeal. Section 761 provided, however, that if any applicationbe made for stay of execution of any appealable decree beforethe expiry of the time allowed for appealing therefrom, thecourt which passed the decree may for sufficient cause orderthat execution be scayed. The party applying for stay ofexecution had to satisfy the court that substantial loss mayresult to him unless such order is made. He had also to makesuch application without unreasonable delay and had to givesecurity for the due performance of such decree or order as mayultimately be binding on him.
But unfortunately the defendant could not have had resortto that provision of the Civil Procedure Code because that wasnot the law in force when he gave notice of appeal on 22.9.77.
A solution to this difficulty is contained in section 7 of LawNo. 19 of 1977, which provides that “ If any matter or questionof procedure shall arise in any civil court in consequence of thecoming into operation of that law or in respect of any matteror question of procedure not provided for by that law, the courtshall have power to make such orders and give such directionsas the court considers necessary to prevent injustice and asthe justice of the case may require.”
One has to bear in mind that section 27 of the Rent Act is aspecial provision meant to he applicable only where a landlordseeks to eject a tenant from part of residential premises,another part of which is occupied by the landlord himself.Another relevant factor is that the new Civil Procedure Code(Amendment) Law, No. 20 of 1977, does not provide for Stay
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SAMARAIvOON, C.J.—Independent Newsjmjters Ltd. v. da Mel
of execution of decrees for ejectment pending appeal. This hasbeen made clear by the substitution of a new section in place ofthe former section 761, and also by the repeal without replace-ment of section 762. But when the judgment creditor appliesunder section 763 for the execution of a decree against which anappeal is pending the court shall, on sufficient cause being shownby the appellant, require security to be given for the restitutionof any property which may be taken in execution of the decreeand for the due performance of the decree or order of theSupreme Court.
An order which is just and reasonable in the present case, inmy view, is one requiring the plaintiff-respondent to furnishsecurity for the due performance of the order of this court inthe main appeal. I would, therefore, dismiss this appeal subjectto the variation in the order made by the learned District Judge,namely, that the plaintiff-respondent do give security in a ^umof Rs. 2,000 in cash for the due performance of the order thatwill be made by this court in the appeal against the learnedJudge’s judgment dated 19.9.77. The plaintiff-respondent is tofurnish this security before the writ of ejectment is executedby the Fiscal.,
There will be no costs of this appeal.
Udalagama, J.—I agree.
Walpita, J.—I. agree.
Varied.