030-NLR-NLR-V-76-H.-M.-WICKREMANAYAKE-Appellant-and-M.-SIMON-APPU-Respondent.pdf
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Wickremanayake v. Simon Appu
1972 Present:H. N. G. Fernando, C.J., and Deheragoda, J.
H. M. WICK REMAN AYAKE, Appellant, and M. SIMON APPU,
Respondent
S. C. 114/69 (Inty.)D. C. Matara, 2014/L
Appeal—Execution of decree paused in appeal—Section 777 of Civil Procedure Code—Scope.
Where a party has been placed in possession of a land in execution of ndecree of a District Court which is subsequently set aside in appeal, section 777of the Civil Procedure Code enables restoration of possession of the land tothe successful appellant.
A.PPEAL from an order of the District Court, Matara.
S. Sharvananda, with S. Mahendram. for the 3rd defendant-appellant.
C. Banganathan, with T. B. Ekanayake and M. Sivarajasingham,for the plaintiff-respondent.
H. N. G.' FERNANDO, 0. J.—Wickremanayake v. Simon Appu
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July 19, 1972. H. N. G. Febnando, C.J.—
The learned District Judge has not realised that although the judgmentof the Supreme Court of 21.11.67 did not refer to the entry of a decreein the Supreme Court, such a decree was in fact entered, in terms of whichthe original judgment and decree of the District Court were set aside.That being so, the effect of the decree of the Supreme Court was that therewas no longer in existence a valid decree in pursuance of which the plaintiffcould properly be placed in possession of the land. Justice thereforerequires that the plaintiff, who had been placed in possession in executionof a decree which had turned out to be invalid, should no longer beallowed to continue in possession of the land. In our opinion the presentcase is not distinguishable from that reported in 35 N. L. R. 28, thejudgment in which declares that in a situation such as this Section 777 ofthe Code provides for restitution in favour of a successful appellant. Theorder of the learned District Judge is set aside and order is now enteredfor the delivery of i possession of land to the defendants and for theejectment of the plaintiff therefrom.
The appellant will be entitled to his costs of appeal and of the inquiryin the Distrct Court.
Dehsragoda, J.—I agree.
Order set aside.