006-SLLR-SLLR-2006-V-3-JAYATISSA-vs.-NANDAWATHIE-AND-OTHERS.pdf

therefrom, for an Enjoining Order and an Interim Injunction restrainingthe ‘Petitioner’ from alienating this property until the final determinationof this action. The Petitioner filed answer and amended answer (X2),subsequent to which the case was fixed for trial for 10.01.2000. ThePetitioner failed to appear at the trial and on his Attorney-at-Law Mr.Dayaratne informing Court that he had not received any instructionsfrom the petitioner and hence was not appearing for him, on applicationmade by counsel appearing for the Respondents the learned AdditionalDistrict Judge fixed the case for ex-parte trial and concluded the ex-parte trial having led the evidence of Kasturi Aratchchige Nandawathiethe 1 st Plaintiff-Respondent and having marked Documents P1 to P5.The ex-parte proceedings and Judgment of 10.01.2000 are marked asX3 and X4 respectively. Consequently the Judgment (X4) and ex-parte
to the plaint, for the ejectment of the ’Petitioner’
the schedule
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Decree was served on the Petitioner only on 18.08.2000 as per JournalEntry (35) in X12. Subsequently the Petitioner tendered a MedicalCertificate (X5) dated 20.01.2000 and filed an application under-section839 of the Civil Procedure Code to set aside the ex-parte proceedings(X3) and ex-parte Judgement (X4). The Petitioner tendered an amendedpetition dated 23.05.2001 (X6) and affidavit (X6a) to which theRespondents submitted objections dated 06.06.2001 (X7). The LearnedAdditional District Judge held an inquiry on the aforesaid applicationof the Petitioner (X8 a, b and c) and delivered his order dated 24.05.2002(X11) by which he dismissed the application of the ‘Petitioner’ madeunder-section 839 of the Civil Procedure Code and further held that ex-parte Judgment (X4) was served on the ‘Petitioner’ and that the‘Petitioner’ had failed to establish the contrary. On 28.05.2002 theRespondents tendered an application for Writ of Ejectment of the’Petitioner’ and sought that writ be executed through the Fiscal asborne out by the Journal Entry contained in (X12). The learned AdditionalDistrict Judge signed the Writ of Execution and made order that theFiscal be issued with it.
The Fiscal Report (X13) stated that on 29.05.2002 the Writ ofExecution had been executed by the Fiscal at 11 a. m. and that vacantpossession had been handed over to the Respondents which isconfirmed in Journal Entry 55 which is dated 31.05.2002. The Petitionerfiled Notice of Appeal on 29.05.2002 at 11.25 a. m. which was acceptedby the Registrar of the District Court, although it was journalized on
as set out in journal Entry 54 of X12.
It is contended by the Petitioner that the writ of Execution wasapplied for and executed by the ‘Respondents’ within 14 days of theOrder dated 24.05.2002 (X11) made by the Learned Additional DistrictJudge and hence is inconsistent with the provisions of section 761 ofthe Civil Procedure Code. The Petitioner submits that as the Notice ofAppeal has been tendered by him, the Respondents are bound to giveNotice to the Petitioner of the application for Writ pending appeal asthen the Petitioner could establish that he would suffer 'Substantialloss’ and that as this procedure has not been adopted by the‘Respondents’ the entire execution proceedings are not in accordance
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with the law and that the Petitioner should be restored to the possessionof the property the subject matter of this case.
The Respondents aver that the Petitioner’s contention can havevalidity only if a valid appeal has been filed by the Petitioner. An appealit is pointed out has 2 stages namely the filing of Notice of Appeal andthe filing of Petition of Appeal. The Respondents contend that as thereis no valid appeal tendered by the Petitioner, that there can be noobjection taken to the validity of the execution proceedings in thiscase and hence that the Petitioner’s objections must be rejected.
I have examined the application of the Petitioner and the positiontaken up by the Respondents. Although ex-parte Judgment and Decreewere entered on 10.01.2000 it is only after the aforesaid were servedalmost after 9 months on the Petitioner as per journal entry (35) dated
in X12, that the Petitioner appeared in the District Court,on which date the Decree was made absolute. On 28.08.2000 thePetitioner tendered a Petition and Affidavit and sought to purge hisdefault. Thus the Petitioner has acted in conformity with section 86(2)of the Civil Procedure Code and made an application within 14 days ofthe service of the Decree entered against him. On an amended petitionand affidavit being tendered by the Petitioner on 23.05.2001 andObjections dated 06.06.2001 being submitted by the Respondents’,the Default Inquiry was held before the Learned Additional District Judgeof Kandy on 10.10.2001, where the Petitioner, his wife and the caretaker of the quarters in which the Petitioner and his wife resided atKotmale gave evidence. On 24.05.2002 the learned Additional DistrictJudge dismissed the Petitioner’s application holding inter-alia that thePetitioner did not call the Fiscal as a Witness to contradict the Fiscal’saffidavit filed in the District Court to the effect that the Fiscal hadserved the Decree on the Petitioner. The Petitioner in his evidencemarked the Medical Certificate of Ayurvedic Dr. Siriwardene dated
(X5) which stated that the Petitioner could not attend Courtsduring the period 09.01.2000 to 14.01.2000 which was due to the factthat he had sprained his left leg which made it difficult for him to walk.The Petitioner in his evidence stated that after 10.01.2000 he hasbeen living in Kotmale in the quarters of his wife who is employed as anurse.
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The Petitioner filed Notice of Appeal on 29.05.2002 at 11.25 a. m.before the Registrar of the District Court who accepted the Notice ofAppeal, but it had been journalized on 31.05.2002. The Fiscal report(X13) states that on 29.05.2002 the Writ of Execution had beenexecuted by the Fiscal at 11 a.m. As the Learned Additional DistrictJudge made order on 24.05.2002 the Respondents could not haveapplied for Writ of Possession until the expiry of 14 days during whichperiod the Petitioner could have filed the Notice of Appeal. ThePetitioner states that at the time of filing the Notice of Appeal he learntthat Writ had already been executed on 29.05.2002 at 11 a.m. Unlessthe Writ is recalled and the possession of the premises in dispute isrestored to the Petitioner, the Petitioner would suffer irremediable lossas the livelihood of the Petitioner depended on the business carriedout in the premises in dispute. The Order made by the learned AdditionalDistrict Judge refusing to set aside the ex-parte judgment gives rise toan appeal in terms of section 88(2) of the Civil Procedure Code. Thisposition was followed in Peter Singho vs. Wydeman (1 Sri Kantha Lawreport page 88). The Ex-parte Judgment which was confirmed afterinquiry cannot be executed until after the expiry of the time allowed forappeal as set out in section 761 of the Civil Procedure Code whichstates ‘No application for execution of an appealable decree shall beinstituted or entertained until after the expiry of the time allowed forappealing therefrom, provided however that where an appeal is preferredagainst such a decree, the Judgment-Creditor may forthwith apply forexecution of such decree under the provisions of section 763.”
In Careem vs. Amerasinghe(1) it was held that an Application forWrit pending appeal made within the appealable period of 60 days isvoid. For the purpose of section 761 of the Civil Procedure Code thetime permitted for appealing from an appealable decree is 14 days,being the time allowed for the giving of Notice of Appeal.
In Brooke Bond (Ceylon) Ltd. vs. Gunasekera (2) it was held byAtukorale, J that “if a Judgment and Decree is entered on the 1 st dayof the month, ordinarily an application for execution of the decree shallnot be entertained until after the expiry of the 14th day of that month”
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On 28.05.2002 the ‘Respondents’ tendered an application for Writof Ejectment of the Petitioner and sought that writ be executed throughthe Fiscal as borne out by the Journal Entry contained in X12, whichwas signed by the Additional District Judge and directed that it beIssued to the Fiscal. The Fiscal report (X13) stated that on 29.05.2002the Writ of Execution had been executed by the Fiscal at 11 a.m. andthat vacant possession has been handed over to the Respondentswhich is confirmed by Journal Entry (55) dated-31.05.2002. ThePetitioner filed Notice of Appeal on 29.05.2002 at 11.25 a.m. whichwas accepted by the Registrar of the District Court although it wasjournalized on 31.05.2002 as set out in Journal Entry (54) of X12.
Hence, it is manifestly clear that the Writ of Execution was appliedfor and executed by the Respondents within 14 days of the order madeby the Learned Additional District Judge dated 24.05.2002 (X11) and isthus inconsistent with the provisions of section 761 of the CivilProcedure Code. Furthermore under these circumstances theRespondents are bound to give notice to the Petitioner of the applicationfor Writ pending Appeal which they have not done for then the Petitionercould have established that he would suffer ‘Substantial Loss’ whichopportunity the Petitioner was deprived of by the aforesaid acts of theRespondents.
Section 763(1) of the Civil Procedure Code states that “In the caseof an application being made by the Judgment – Creditor for executionof a Decree which is appealed against, the Judgment-debtor shall bemade Respondent”
Section 763(2) states that “The Court may order Execution to bestayed upon such terms and conditions as it may deem fit, where (a)the Judgment-debtor satisfies the Court that ‘substantial loss’ mayresult to the Judgment-Debtor unless an order for stay of execution ismade; and
Security is given by the Judgment-Debtor for the due performanceof such Decree or order as may ultimately be binding upon him.”
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It was held in Edward vs De Silva (3) that “In an application forexecution of decree after an appeal has been filed by the Judgment-Debtor it is the duty of the Judgment-Creditor to make the Judgment-Debtor a party Respondent”
However, in this case the procedure in section 763 of the CivilProcedure Code has not been followed by the ‘Respondents’ thusdepriving the ‘Petitioner’ of satisfying the Court that ‘Substantial loss’could be caused to him. The Order of the Learned Additional DistrictJudge dated 24.05.2002 is a correct order on the facts and the law andI see no reason to interfere with it. However, for the aforesaid reasons,
I am of the view that the orders dated 28.05.2002 and 29.05.2002 arenot in conformity with the law.
Hence, it is my view that in this case the District Court had nojurisdiction to entertain an application for Execution of Decree pendingappeal. For the aforesaid reasons there is no proper application beforethe District Court for execution.
Thus I permit the Appeal of the Petitioner in this regard and setaside the orders of the Learned Additional District Judge dated
and 29.05.2002 as prayed for in paragraph (ii) of the petition.As the order of the Learned Additional District Judge dated 24.05.2002is a correct order, I direct the District Judge of Kandy to recall the writissued in DC Kandy Case No. 18909/L as sought for in prayer (iii) ofthe petition.
I further order the District Judge of Kandy to hold an inquiry in relationto the Writ pending appeal in terms of section 763 of the Civil ProcedureCode and section 23 of the Judicature Act, as prayed for in prayer (iv)of the Petition. I make no order with regard to costs.
SRISKANDARAJAH, J. – / agree.
Application allowed.