018-SLLR-SLLR-1998-1-HUSAIRA-v.-SAMARANAYAKE.pdf
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Husaira v. Samaranayake
141
HUSAIRA
v.SAMARANAYAKE
SUPREME COURTG. P. S. DE SILVA, CJ.,
PERERA, J. ANDWIJETUNGA, J.
S.C. APPEAL NO. 180/96
A. (REVISION) NO. 553/95
C. COLOMBO 7523/REAUGUST 8TH, 1997SEPTEMBER 8TH, 18TH, 1997.
Execution of decree pending appeal – Judicature Act, s. 23 — Discretion of courtto stay execution.
The District Court in allowing the application for execution of decree pending appealassumed that the Judicature (Amendment) Act No. 16 of 1989 which removedthe discretion of the court under s. 23 of the Judicature Act as amended by ActNo. 37 of 1979 to stay execution was in force when in fact the amending ActNo. 16 of 1989 had not been brought into operation. The Court of Appeal alsomistakenly cited s. 23 of the Act as amended by Act No. 16 of 1989 and affirmedthe order of the District Court.
Held:
The court had by reason of the mistake regarding the amending Act committedan error of law; but on the facts the defendant was entitled to an order stayingexecution of the decree in the exercise of the discretion under s. 23 of theJudicature Act as amended by Act No. 37 of 1979.
APPEAL from the judgment of the Court of Appeal.
S. Mahenthiran for the defendant-appellant.
Sanath Jayatiiake for the plaintiff-respondent
Cur. adv. vult
142
Sri Lanka Law Reports
(1998) 1 Sri LR.
14th October 1997
P. S. DE SILVA, CJ.
The plaintiff instituted this action in the District Court against thedefendant (the tenant) seeking inter alia, her ejectment from thepremises in suit on the ground of arrears of rent. The defendantclaimed that all arrears of rent were tendered to the plaintiff (landlord)in terms of section 22 (3) (c) of the Rent Act and therefore the plaintiffcannot have and maintain the action. At the trial no oral evidencewas led. The parties relied on the documents filed of record and thewritten submissions. The District Court entered judgment in favour ofthe plaintiff. Thereupon the defendant preferred an appeal to the Courtof Appeal. The appeal is now pending before the Court of Appeal.
The plaintiff thereafter sought to execute the decree while theappeal was pending. The defendant gave evidence at the inquirybefore the District Court and endeavoured to resist the applicationfor execution of .decree. The District Court, however, allowed theapplication for execution of the decree. The defendant moved theCourt of Appeal by way of revision and an application for "leave toappeal". The Court of Appeal affirmed the order of the District Courtallowing the application for execution of decree. Hence the presentappeal by the defendant to this court.
One of the provisions of law which enables the District Court tomake order staying execution of judgment, decree or order is section23 of the Judicature Act, No. 2 of 1978 as amended by the Judicature(Amendment) Act No. 37 of 1979. Section 23 as amended reads thus:
“23. Any party who shall be dissatisfied with any judgment,decree, or order pronounced by a District Court may (exceptingwhere such right is expressly disallowed) appeal to the Court ofAppeal against any such judgment, decree, or order from {sic) anyerror in law or in fact committed by such court, but no such appealshall have the effect of staying the execution of such judgment,decree, or order unless the District Judge shall see fit to makean order to that effect, in which case the party appellant shall enterinto a bond, with or without sureties as the District Judge shallconsider necessary, to appear when required and abide the judg-ment of the Court of Appeal upon the appeal".
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Husaira v. Samaranayake (G. P. S. de Silva, CJ)
143
This section undoubtedly vests a discretion in the court to makean order staying execution, if it “shall see fit" to do so.
Unfortunately, both the District Court and the Court of Appeal haderroneously assumed that section 23 of the Judicature Act had beenfurther amended by the amending Act No. 16 of 1989. Counsel forboth parties have now conceded that the relevant provision of theamending Act No. 16 of 1989 has not been brought into operation.The law as it now stands is in terms of section 23 as set out above.
It seems to me that the short point that arises for considerationis whether on the facts this was a fit case for the exercise of thediscretion of the court to stay execution of decree in terms of section23 of the Judicature Act as amended. The defendant testified at theinquiry before the District Court. In her evidence given on 19.1.95she stated that she was 78 years of age, she was in poor state ofhealth, she suffered from difficulty in walking, she was short of hearing,has no income and no other place to reside. Old age, ill-health andthe accompanying infirmities are very much an inescapable reality oflife. These facts are very relevant and due weight should have beengiven to them in the exercise of the discretion vested in the courtin terms of section 23. It seems to me that the Court of Appeal maywell have considered these matters but for the fact that the courtmistakenly cited section 23 as amended by Act No. 16 of 1989 andconcluded:
“It is clear from the above provisions that the words 'shall seefit1 have been omitted by the said amendment, thus taking awaythe discretion which was earlier conferred on the District Judgeto stay writ when 'he shall see fit'.”
This was an error of law and the judgment cannot therefore stand.
On a consideration of the facts and circumstances referred to bythe defendant in her evidence, it seems to me that this was a fit casefor the court to have made an order staying execution of decree inthe exercise of its discretion in terms of section 23 of the JudicatureAct as amended by Act No. 37 of 1979. In this view of the matter,the submission of Mr. Mahenthiran for the defendant-appellant thatthis appeal involves a substantial question of law does not arise forconsideration.
144
Sri Lanka Law Reports
(1998) 1 Sri LR.
For these reasons the appeal is allowed, the order of the DistrictCourt dated 03.08.95 and the judgment of the Court of Appeal areset aside. The execution of the decree of the District Court, againstwhich an appeal has been preferred, is directed to be stayed pendingthe final determination of the said appeal. The defendant-appellantis directed to enter into a bond which would be considered necessaryby the District Court in terms of section 23 of the Judicature Act asamended. For this purpose, the Registrar is directed to return therecord to the District Court. In all the circumstances, I make no orderas to costs.
PERERA, J. – I agree.
WIJETUNGA, J. – I agree.
Appeal allowed.