035-SLLR-SLLR-2003-V-2-EKANAYAKE-v.-EKANAYAKE.pdf
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Ekanayake v Ekanayake (Amaratunga, J.)
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EKANAYAKE
v
EKANAYAKE
COURT OF APPEALAMARATUNGA, J. ANDABEYRATNE, J.
A.L.A. NO. 78/2003
C. POLONNARUWA 5341/LJANUARY 19, 2003
Civil Procedure Code, sections 224, 323, 754(4), 755 (3), 761. 763 and 774 -Application for execution of decree – Is it after 14 days or 60 days of judg-ment? – Application for writ of execution – Is there a particular form?
Held:
The application for execution of decree filed after the judgment debtor filedthe notice of appeal is a valid application. The time allowed for the appeal-ing from the appealable decree 14 days – section 754 (4) – time allowed forthe giving of notice (appeal). The Brooke Bond case has put the matterbeyond doubt. The Court of Appeal is bound to follow the said case.
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Section 323 states that an application for execution of a decree may bemade in the manner and according to the Rules prescribed for executionof decrees under Head (A) so far as the same are applicable. Referenceto Head A brings in section 224.
What is required is substantial compliance with section 224 in so far asis necessary for the purpose of excuting a decree for the recovery ofimmovable property.
An application in Form 42 is a proper application. Absence of a petitionand affidavit even if they are necessary is a mere technicality. What mat-ters is not the form of the application but the particulars to be given insuch an application.
Per Amaratunga, J.,
“ Execution is a process for the enforcement of a decreed right, mere techni-calities shall not be allowed to impede the enforcement of such rights in the
absence of any prejudice to the judgment debtor”.
APPLICATION for leave to appeal from the Order of the District Court of
Polonnaruwa.
Cases referred to:
Brooke Bond (Ceylon) Ltd. v Gunawardena (1990) 1 Sri LR 71
Arulampalamv Fernando (1986) Vol 1 CALR 651
Careem v Amarasinghe, Vol I Sriskantha Law Reports 25
Sanath Jayatilake for petitioner.
Ananda Kasthuriarachchi for respondent.
Cur. adv. vult.
July 25, 2003
AMARATUNGA, J.
This is an application for leave to appeal against the order ofthe learned District Judge of Polonnaruwa overruling two prelimi-nary objections raised by the learned counsel for the defendant-petitioner to the application for execution of the decree pendingappeal. The two objections related firstly to the time at which theplaintiff judgment creditor (hereinafter called the plaintiff) is entitled
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to make an application under section 761 of the Civil ProcedureCode (hereinafter called the Code) for execution of decree pendingappeal and secondly to the form of such application.
In this case judgment was entered for the plaintiff by theDistrict Court on 2/1/2001. The defendant filed a notice of appealon 8/1/2001. In terms of section 755 (3) of the Code, the defendanthad sixty days from the date of the judgment appealed against tofile his petition of appeal. However the plaintiff made, his applicationto Court for the execution on the decree on or about 29th ofJanuary, before the expiry of the said period of sixty days. Section761 of the Code which deals with applications for execution ofdecree pending appeal is as follows.
“No application for execution of an appealable decree shall beinstituted or entertained until after the expiry of the timeallowed for appealing therefrom. Provided, however, thatwhere an appeal is preferred against such a decree, the judg-ment creditor may forthwith apply for execution of such decreeunder the provisions of section 763.”
In terms of section 754(4) of the Code every appeal to theCourt of Appeal against any judgment or decree of any originalcourt has to be filed by presenting a notice of appeal within 14 daysfrom the date on which the judgment or decree appealed againsthas been pronounced. Thereafter the appellant has to file the peti-tion of appeal within sixty days from the judgment or orderappealed against, (section 755(3) of the Code) The submission ofthe learned counsel was that the phrase ‘time allowed for appeal-ing' in section 761 includes the time limits prescribed for the filingof the notice of appeal and the petition of appeal. Therefore theappealable period expires after both steps have been completedwithin the prescribed period or after the expiry of sixty days or ifnotice of appeal has not been filed within 14 days, then after 14days. If both steps have been completed before the expiry of sixtydays, then, in view of the proviso to section 761, the application forexecution can be made soon thereafter, Therefore the learnedcounsel’s submission was that it was not open to the judgmentcreditor to file his application for execution before the petition ofappeal was filed and accordingly the application was bad in law.
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In this case notice of appeal has been filed within the period of14 days prescribed by section 754(3). The application for executionof decree has been filed before the petition of appeal was filed.According to the argument of the learned counsel, this application istherefore bad in law.
The second objection raised by the learned counsel for the judg-ment debtor was that the application for execution of decree has tobe made in accordance with section 224 of the Code and thereforein the absence of an application in Form No 42 of the First Scheduleto the Code there was no proper application before Court. Thelearned District Judge has not dealt with this second objection in hisorder.
The learned District Judge, relying on the decision of theSupreme Court in Brooke Bond (Ceylon) Ltd. v Gunasekera0) hasrejected the contention that the application for execution had beenfiled before the period allowed for filing of an appeal. In the abovecase, Atukorale, J. having considered the provisions of the CivilProcedure Code relating to the filing of appeals against the judg-ments and decrees of original courts has held (with H.A.G. de Silva,
J.and Bandaranayake, J. agreeing) that “for the purpose of section761, the time allowed for appealing from an appealable decree is 14days (the time allowed for the giving of notice of appeal) and that anappeal is preferred against such as decree upon the lodging of thenotice of appeal within 14 days in terms of section 754(3)". (page 83)
According to this judgment the application for execution ofdecree filed after the judgment debtor filed the notice of appeal is avalid application and the learned District Judge was correct in over-ruling the preliminary objection. However in the written submissionsfiled in the District Court and in this Court and at the hearing beforeus the learned counsel for the petitioner has taken up the positionthat the judgment in the Brooke Bond case is not a judgment withinthe meaning of section 774 of the Civil Procedure Code and as sucha court is not bound to follow that judgment as a precedent. Thelearned counsel has also submitted that the said decision has novalidity as it is a decision given per incuriam. The learned counselhas cited excerpts from Chapter IV of Cross on 'Judicial Precedent’in support of his submission that the decision in the Brooke Bondcase has no binding force as a precedent.
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The learned counsel in his written submissions has notexplained the reasons for his submission that the decision in theBrooke Bond case is not a judgment within section 774 of the Code.That judgment sets out the question Of law to be decided in that case,the decision of Court thereon, the reasons for the decision and therelief the appellant was entitled to. Thus it has all the characteristics ofa judgment. The learned counsel has not demonstrated how theexcerpts from Cross cited by him fit into his submission that the deci-sion in the Brooke Bond case is not a judgment.90
Apparently the learned counsel’s submission that it is not ajudgment is linked to his other submission that the said decisionhas been given per incuriam. He has submitted that the questionfor decision in Brooke Bond’s case was whether the petitioner whomade the application for the execution of writ was entitled, at thetime he made the application, ‘to forthwith apply for execution’, butinstead of considering this question the Court has proceeded to dis-cover the meaning of the words ‘time allowed for appealing’. Theword forthwith’ in section 761 refers to the happening of an event,namely the filing of the appeal. Therefore in determining whether 100the petitioner was entitled to forthwith apply for execution, one hasto find what is meant by the words ‘time allowed for appealing’.Once the answer to that question is found, the answer to trie otherquestion logically and automatically follows. Thus Atukorale, J. hasrightly considered the proper question of law. to be considered inthat case and accordingly I cannot accept the submission that HisLordship has considered an irrelevant question or that his judg-ment is per incuriam. I therefore hold that this Court is bound to fol-low the decision in the Brooke Bond case and that the order madeby the learned District Judge following that case is correct in law ijoand should be upheld.
The other objection raised by the learned counsel in theDistrict Court was that there was no proper application before Courtas the judgment creditor has not made the application in terms ofsection 224 of the Civil Procedure Code. Sections 761 and 763 ofthe Code do not specify a particular form for the application orstate that it should be made in accordance with a particular sectionof the Code. The only mandatory requirement specified in section763 is that the judgment debtor shall be made a respondent to
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such application. In the instant case, the application has beenmade by way of petition and affidavit. In support of his submissionthat the application for execution of the decree pending appealshould be made under section 224 of the Code, the learned coun-sel has cited the decision in Arulampalam v Fernando<2) whereJameel, J. has stated as follows. “The application referred to insection 763 is the application made under section 224 and there isno requirement in either section that the application should be byway of petition and affidavit.” Section 224 appears in Chapter 22 ofthe Code which relates to executions. Section 224 appears underHead A of that Chapter which relates to execution of decrees to paymoney. The section sets out the particulars to be given in an appli-cation for the execution of a decree to pay money. Form No. 42 ofthe First Schedule to the Code requires the same particulars iden-tical to those specified in section 224. Section 323 which deals withapplications for the recovery of immovable property says that anapplication for execution of a decree for the recovery of immovableproperty may be made in the manner and according to the rulesprescribed for execution of decrees under Head (A) so far as thesame are applicable. The reference in this provision to Head (A)thus brings in section 224. The wording of section 323 permits theapplicant to omit certain particulars [which solely relate to moneydecrees – such as particulars under section 224(e) to (h)] specifiedin section 224 from an application for the execution of a decree forthe recovery of possession of immovable property. Therefore whatis required is substantial compliance with section 224 in so far as isnecessary for the purpose of executing a decree for the recoveryof immovable property.
In Careemv AmarasingheS3'1 the application for execution hadbeen made in Form No 42. It was contended that the applicationshould have been made by petition and affidavit as the only way tocomply with the requirement of making the judgment debtor arespondent is by making the application by petition supported byaffidavit. G.P.S. de Silva, J. (as he then was) did not accept thisargument. According to his reasoning the purpose of making thejudgment debtor respondent to an application made under section763 is to give him notice of the application and to enable him to beheard before an order is made. Form 42 contained all the material
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particulars such as the names of the parties, the date of decree,whether any appeal has been preferred, previous applications, ifany, the name of the person against whom decree is sought to be 160executed and the mode in which court’s assistance is required. Inthat case a copy of the application in Form No. 42 had been servedon the judgment debtor and he had appeared in Court and hadopposed the application. The Court held that it was sufficient com-pliance with section 763. In that case G.P.S. de Silva, J. has statedthat even if the argument that petition and affidavit is necessary isaccepted, the absence of such petition and affidavit is a mere tech-nicality which has in no way prejudiced the judgment debtor. (Theaspect of this judgment has not been overruled by the Brooke Bondcase which overruled the decision of Careem v Amarasinghe 170{supra) in so far as it related to the time allowed for appealing.)
According to the decisions of the two cases cited above, anapplication in Form No. 42 is a proper application. However bothcases do not say that an application made by petition and affidavitis not a proper application. What matters is not the form of theapplication but the particulars to be given in such an application. Ifthe application before Court contains the particulars required undersection 224 (in so far they are applicable) and the name of therespondent, it is a proper application. Execution is a process for theenforcement of a decreed right. Mere technicalities shall not be 180allowed to impede the enforcement of such rights in the absence ofany prejudice to the judgment debtor. The application made in thiscase contains all particulars necessary and the judgment debtor isin fact before Court. In the circumstances the Court should beallowed to decide the application on its merits.
For the reasons set out above I uphold the learned DistrictJudge’s order to proceed with the inquiry. Accordingly I refuse leaveto appeal and dismiss this application with costs in a sum ofRs. 7500/.
ABEYRATNE, J. – I agree.Application dismissed.