Sri Lanka Law Reports
(1978-79) 2 S. L. R.
Fernando v. Girigoris
COURT OF APPEAL
CO'IN TITO''IE. J. ANL ATUKORALE, J.
C. 4. 1423/7P—D.C. GAMPAHA 17857/M.
JULY 27. 1979.
Civ;l Procedure Code, sections 761, 763—Application for execution of adecree pending appeal—Power of Court to grant stay of execution—
Requirement <hct judgment debtor be made respondent to such appli-cation for execution—Effect of Civil Procedure Code (Amendment)Lew. No. 20 of 1077.
Where an application is made for the execution of a decree in respectof which an appeal has been filed the provisions of section 763 of theCivil Procedure Code make it imperative that the judgment-debtorshould be made a party respondent. Under the section the Court has
Fernando v. Girigoris (Atukorale, J.)
a disci etion either to grant or refuse an application for the executionof a decree pending appeal and the fact that the new section 761 broughtin by Law No. 20 of 1977, does not provide for an application for a stayof execution to be made to court, does not mean that a court is nowpowerless to grant a stay.
Cases referred to
Vethamanickam v. Davoodbhoy, (1962) 63 N.L.R. 548.
Edward v. de Silva, (1945) 46 N.L.R. 342.
APPEAL from the District Court, Gampaha.
A. J. 1. Tilakawardena, for the petitioner.
P. A. D. Samarasekera, with G. L. Geetananda, for the respondent.
Cur. ado. vult
July 27, 1979.
ATUKORALE, J.This is an application to revise the order of the learned DistrictJudge made on 16.5.1979 allowing the issue of a writ of executionagainst the petitioner in an action .filed by the respondent to ejecther from certain premises. In delivering judgment for therespondent as prayed for in the amended plaint, the learnedDistrict Judge held that the respondent had leased out to thepetit;oner’s deceased husband the business of a barber saloon andnot the premises in suit. A few days later the petitioner filed anotice of appeal and on 21.2.1979 she tendered the petition ofappeal. In the meantime on 8.1.1979 the respondent filed anapplication for execution of the decree by the issue of a writ.The petitioner (who was named a respondent to this applica-tion) filed her objections to the issue of writ and the matterwas fixed for inquiry on 2.5.1979. On 16.5.1979 the learned DistrictJudge in a very brief order held that there was no provision inlaw to grant a stay of execution and ordered writ to issue onthe respondent furnishing security in a sum of Rs. 2,000. Thepetitioner now seeks to have this order revised.
According to the provisions of section 763 of the Civil ProcedureCode it is imperative that the judgment-debtor should be madea party respondent to any application for execution of a decreeagainst which an appeal is pending. It further states asfollows: —
“If, on any such application, an order is made for theexecution of a decree against which an appeal is pending,the court which passed the decree shall, on sufficient causebeing shown by the appellant, require security to be givenfor the restitution of any property which may be taken inexecution of the decree—.. ”
The plain meaning of these words make it quite clear that thecourt has a discretion to either grant or refuse an application forexecution of a decree pending appeal. In fact the object of
Sri Lanka Lav/ Reports
(1978-79) 2 S. L. R.
making the judgment-debtor a party respondent to such anapplication is obviously to give him or her an opportunity ofshowing cause, if any, against the issue of the writ of execution.In the case of Edward and De Silva, (1) Soertsz A.C. J. in consider-ing section 763 stated that it was open to the Court under thatsection to refuse an application for execution of a decree pendingappeal. In the case of Vethamanickam. v- Davoodboy (2) T. S.Fernando, J. observed as follows : —“ The purpose of making ajudgment-debtor a party respondent to an application under s.763 is to enable him to show cause against a granting of it." Theorder of the learned District Judge is thus clearly wrong in law.
Prior to the enactment of the Civil Procedure Code (Amend-ment) Law No. 20 of 1977, sections 761 and 762 of the Code madeexpress prevision for an application for the stay of execution ofan appealable decree to be made before the expiry of the timeallowed for appealing from such a decree. These sections were,however, repealed by Law No. 20 of 1977 aforesaid, and a newsection 761 substituted in place of the former section 761. Thenew section does not now make provision for an application fora stay of execution to be made to court. But this does not meanthat a court is now powerless to grant a stay. As stated earlier, thecourt has a discretion to grant or to refuse to grant a stay ofexecution when an application for execution of the decree ismade by the judgment-creditor.
For the above reasons I am of the view that the order of thelearned District Judge is wrong ex facie. As such this orderdated 16.5.1979 is set aside. I also direct that a fresh inquiry beheld into the objections of the petitioner. The petitioner will beentitled to the costs of this application.
COLIN THOME, J.—I agree.
Fernando v. Girigoris