029-SLLR-SLLR-2002-3-HUSSAIN-AND-OTHERS-v.-THE-LAND-REFORM-COMMISSION.pdf
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Hussain and Others v. Land Reform Commission
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HUSSAIN AND OTHERS
v.
THE LAND REFORM COMMISSION
COURT OF APPEAL
UDALAGAMA, J. AND
NANAYAKKARA, J.
CALA NO. 172/2001
DC COLOMBO NO. 4682/ZL
SEPTEMBER 05, 2001
Civil Procedure Code, section 343 – Should an application under section 343
for stay of execution of decree be accompanied by an affidavit? – Bona tides.
Held:
It is clear that the section does not stipulate a petition preferred undersection 343 should be accompanied by an affidavit; what is required undersection 343 is only a petition.
The act of filing of an affidavit – albeit a defective affidavit – makes itonly a redundant act on the part of the respondent which does not invalidatethe application.
Whether a particular application is made mala fide and with the objectiveof delaying the execution proceedings is a question of fact and shouldbe best left to the discretion of the trial Judge.
APPLICATION for leave to appeal from an order of the District Court of Colombo.
Case referred to :
1. Wijewardene v. Raymond – 39 NLR 169.
S. Kanagasingham for petitioners.
Nihal Jayamanne, PC for respondent.
Cur. adv. vult.
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Sri Lanka Law Reports
[2002] 3 Sri L.R.
February 06, 2002NANAYAKKARA, J.
An order given in respect of an application made under section 343of the Civil Procedure Code by the defendant-respondent for the stayof execution of decree obtained by the plaintiffs-petitioners has givenrise to this application by way of leave to appeal.
The said decree according to the petitioners consists of two parts,one for the possession of land and the other for recovery of moneyby way of compensation, damages and costs. While the decree forthe recovery of money has been partly satisfied the decree forpossession of land remains unsatisfied.
Consequent to the service of the seizure notice on the respondentfollowing the failure of the petitioners to obtain full satisfaction ofdecree, the respondent made an application under section 343 of theCivil Procedure Code for the stay of execution of the decree. At theinquiry held in respect of this application for the stay of execution,it was contended on behalf of the petitioners that there was no properapplication under section 343, in that there was no proper and validaffidavit and that the application lacked bona tides, as it has beenmade with malicious intention and the objective of delaying theexecution proceedings.
The learned District Judge made an order on 15. 03. 2000 overrulingthe objections raised by the petitioners to this application.
It is from this order that the petitioners have sought relief fromthis court by way of leave to appeal.
The fundamental question that has to be determined in this caseis whether there is any validity in the objections taken in regard tothe affidavit and that the respondent's application under section 343
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Hussain and Others v. Land Reform Commission(Nanayakkara, J.)
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of the Civil Procedure Code has been mala fide and made with theobjective of delaying the execution of proceedings. For the purposeof determination of the questions at issue, reference to section343 (2) of the Civil Procedure Code will be pertinent. The sectionreads thus:
“The application to the court to stay proceedings shall be madeby petition, to which all persons interested in the matter of theexecution shall be made parties, and no such order shall be madeuntil after payment of all Fiscal's fees then due."
A cursory reading of this section makes it amply clear that thesection does not stipulate, a petition preferred under section 343 ofthe Civil Procedure Code should be accompanied by an affidavit ashas been contended by the petitioners in this case. What is requiredunder section 343 is only a petition, and if there is such a requirementfor an affidavit the section would have made express and explicitstipulation to that effect in the section itself. In the absence of suchexpress stipulation, it cannot be presumed that the legislature intendedthat an affidavit should accompany a petition filed under section 343of the Civil Procedure Code. As counsel for the respondent has pointedout in his submissions, in situations where affidavits are necessarythe Civil Procedure Code has expfessly made provision for thosesituations and absence of'provisions for an affidavit under section 343does not render the application invalid, even if the affidavit filed isdefective. Therefore, the act of filing an affidavit albeit a defectiveaffidavit makes it only a redundant act on the part of the respondentwhich does not invalidate the application.
Learned counsel has referred us to the decision arrived at in thecase of Wijewardena v. Raymondn in support of his argument thatthere is no requirement for an affidavit to be filed under section 343of the Civil P.ccedure Code. It was held in this case that there isno requirement for an application for execution of decree to besupported by an affidavit. As suggested by counsel this authority willbe helpful in resolving the question in issue.
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Sri Lanka Law Reports
[2002] 3 Sri LR.
I am of the view that tF»e reasoning adopted by Justice Soertszin the case of Wijewardena v. Raymond (supra) in regard to anapplication for execution of decree applies with equal force to anapplication made under section 343 for stay of execution. It was heldin this case that there is no requirement for an application for executionof decree to be supported by an affidavit.
Therefore, a consideration of the alleged defects and infirmities inthe affidavit is not warranted in this case.
In regard to the objection that the respondent's application undersection 343 lacked bona fide and made with the objective of delayingthe execution proceedings, it should be observed that whether aparticular application is made mala fide and with the objective ofdelaying the execution proceedings is a question of fact which hasto be determined depending on the circumstances of each case anda determination in regard to a factual position therefore should bebest left to the discretion of the trial Judge.
Therefore, the District Judge's decisions in regard to a finding offact cannot be supplanted by a determination of this court which thepetitioners request this court to make on facts unless a patent andmanifest injustice has been caused to the petitioner.
In view of the foregoing reasons, I refuse leave to appeal fromthe order of the learned District Judge made on 18. 05. 2001 andcast the plaintiffs-petitioners in costs in a sum of Rs. 5,000 each.
UDALAGAMA, J. – I agree.
Application dismissed.
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