027-SLLR-SLLR-2002-3-KAMANIE-ALLES-DE-SILVA-v.-WIJEWARDANE.pdf
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KAMANIE ALLES DE SILVA
v.WIJEWARDANE
COURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
CA NO. 872/98 (F)
DC BALAPITIYA NO. 731/LMAY 10, JULY 19,
SEPTEMBER 03, 17, 23 ANDOCTOBER 14, 2002
Civil Procedure – Civil Procedure Code, sections 337 and 337 (2), as amendedby Act, No. 53 of 1980 – Application for writ – Limitation -10 years – Disappearanceof party – Preventing execution – Application after 10 years – Plaintiff presumedto be dead – No fraud or force preventing execution alleged – Applicability ofthe proviso.
Held:
The decree is dated 28. 11. 1983; the first application for writ is dated14. 06.1994; the second application is dated 10. 07.1997. Both applicationsfor a writ to execute the decree have been made after 10 years from thedate of decree – 28. 11. 1983.
The contention that in view of the special circumstances the court shoulddeduct the period – the date of disappearance of the original plaintiff tothe date she was presumed in law to be dead – from the 10-year periodstipulated, cannot be accepted. Section 317 is very clear and specific. Thereis no force or fraud alleged – section 337 (2).
APPEAL from the judgment of the District Court of Balapitiya.
Cases referred to:
Rajadurai v. Emerson – (1995) 2 Sri LR 30.
Haji Omar v. Bodhidasa – (1994) 2 Sri LR 191.
CA
Kamanie Alles De Silva v. Wijewardane
(Somawansa, J.)
237
Nihal Jayamanne, PC with Noorani Amerasinghe for substituted plaintiff-appellant.
C. J. Laduwahettl for defendant-respondent
Cur. adv. vult
December 05, 2002A. M. SOMAWANSA, J.
The instant appeal is preferred from an order of the District Judgeof Balapitiya dated 04. 09. 1998 refusing the issue of writ in termsof section 337 of the Civil Procedure Code on the basis that theapplication for writ was made after the lapse of ten years from thedate of the decree. The facts relevant are the original plaintiff filedthe instant action for a declaration that she is entitled to the exclusivepossession of the land described in paragraph 02 of the plaint andfor ejectment of the defendant-respondent therefrom. Summons wereduly served on the defendant-respondent but the defendant-respondentdid not appear in Court on the summons returnable date and the casewas fixed for ex parte trial.
On 18. 10. 1983 ex parte trial was concluded and as per journalentry 6 the ex parte judgment was delivered on 28. 11. 1983. Asper journal entry 16 dated 12. 02. 1986 a copy of the ex parte decreehad been duly served on the defendant-respondent personally by theFiscal of Balapitiya. However, the defendant-respondent did not appearin Court in response to the service of the decree nor did she takeany steps to have the said ex parte decree vacated. According tothe position taken by the substituted plaintiff-appellant before any stepscould be taken to issue writ to execute the decree the original plaintiffthe mother of the substituted plaintiff-appellant disappeared on12. 06. 1986 and her whereabouts were not known. Hence, no furthersteps could be taken.
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As per journal entry 17 dated 05. 05. 1994 the substituted plaintiff-appellant as the sole heir of the original plaintiff made an applicationto Court to get herself substituted in the room of the original plaintiffand Court allowed the application. As per journal entry 18 dated16. 06. 1994 the substituted plaintiff-appellant filed an applicationfor writ with notice on the defendant-respondent to show causeif any as to why writ of possession and ejectment should not beallowed against the defendant-respondent.
The defendant-respondent filed objections and the matter was takenup for inquiry. At the inquiry the defendant-respondent took up theposition that as no notice of the application for substitution of thepresent plaintiff-appellant was given to the defendant-respondent thesubstitution was bad in law and all steps taken thereafter by thesubstituted plaintiff-appellant are also bad in law. The learned DistrictJudge by his order dated 30. 04. 1996 upheld the objection raisedby the defendant-respondent. Thereafter, another application was madeby the substituted plaintiff-appellant to get herself substituted in placeof the original plaintiff. Though the defendant-respondent objected tothis application too, at the inquiry she did not object to the substitutedplaintiff-appellant being substituted in the room of the original plaintiffand the said substitution was effected. Thereafter, the substitutedplaintiff-appellant for the second time filed an application for writ withnotice on the defendant-respondent to show cause if any as to whywrit of possession and ejectment of the defendant-respondent fromthe land in suit should not be allowed. As defendant-respondent filedobjection the matter was taken up for inquiry. The main objection takenup by the defendant-respondent was that in view of the provisionsin section 337 of the Civil Procedure Code the substituted plaintiff-appellant could not, have and maintain this application for a writ, inthat the said application is time-barred. The learned District Judgeby his order dated 04. 09. 1998 upheld the said objection of thedefendant- respondent and rejected the substituted plaintiff-appellant'sapplication for a writ.
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CA
Kamanie Alles De Silva v. Wijewardane
(Somawansa, J.)
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At the hearing of this appeal, learned President's Counsel appearingfor the substituted plaintiff-appellant contended that the learned DistrictJudge has failed to consider the intervening circumstances, thedisappearance of the original plaintiff without a trace on 12. 06. 1986,which prevented the execution of the decree within the time periodstipulated by section 337 of the Civil Procedure Code.
The relevant provisions in section 337 of the Civil Procedure Codeas amended by Act, No. 53 are as follows:
337. (1) "No application (whether it be the first or a subsequentapplication) to execute a decree, not being a decree granting aninjunction, shall be granted after the expiration of ten years from-
the date of the decree sought to be executed or ofthe decree, if any, on appeal affirming the same; or
(b)
(2) Nothing in this section shall prevent the court fromgranting an application for execution of a decree after the expirationof the said term of ten years, where the judgment-debtor has byfraud or force prevented the execution of the decree at some timewithin ten years immediately before the date of the application."
In the instant case the decree is dated 28. 11. 1983 and the firstapplication for writ is dated 14.06.1994 and the second applicationfor writ appears to have been tendered as per journal entry 40 onor about 10. 07. 1997. Therefore, it is clear that both applicationsfor a writ to execute the decree dated 28. 11. 1983 have been madeafter 10 years from the date of the decree. In the case of Rajaduraiv. Emerson™ action was instituted for declaration of title and ejectment.Consent decree was entered on 15. 06. 1976 –
Plaintiff died on 03. 10. 1979 without making an applicationfor execution. The respondent, the administrator and sister of theplaintiff was substituted on 12. 06. 1986 in terms of section 395
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of the Civil Procedure Code and obtained writ. The Court of Appealset aside the order and observed that the application should havebeen under section 339 (1) and not under 395.
Another application for writ under section 339 (1) was madeby the administrator, which was resisted on the basis that in terms soof section 337 (1) of Act, No. 53 of 1980, since a period of tenyears have elapsed after the decree, writ could not issue. TheDistrict Court allowed the application for writ.
It was held the ten year limitation period does not apply in relationto a decree for immovable property and possession entered prior tothe date of coming into operation of Act, No. 53 of 1980.
It was also held that by amended section 337 (1) of Act, No. 53of 1980, the ten year bar became applicable to all decrees, otherthan a decree granting an injunction, subject to the exceptions thatare provided.100
The amendment brought in by Act, No. 53 of 1980 cannot beregarded as purely procedural legislation insofar as it purports to affectthe vested right of the judgment-creditor.
In arriving at this finding S. N. Silva, J. (P/CA) as he then was
followed the principles as laid down in the SC decision of Haji Omar
(2)
v. Bodhidasa where it was held –
Under the amended section 337 (1) no application to executea decree shall be granted after the expiration of ten years fromthe date of the decree subject to certain exceptions.
The Amendment Act, No. 53 of 1980 cannot be regarded as purelyprocedural legislation insofar as it purports to affect (or rather todestroy) the vested right of the judgment-creditor.
CA
Kamanie Alles De Silva v. Wijewardane
(Somawansa, J.)
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in the said case at page 197 Dheeraratne, J. in dealing with theapplication of Amendment Act, No. 53 of 1980 observed:
“Learned counsel for the substituted plaintiffs contended thatif the provisions of Amendment Act, No. 53 of 1980 are applicableto the present application, in terms of subsection 3 of section 337,a writ of execution may be issued at any time until satisfactionof decree is obtained and therefore there is no time constraintfor such application. This submission commended itself to the izoCourt of Appeal. I am unable to justify such an interpretationbecause the amended section 337 (1) states that no applicationto execute a decree shall be granted after the expiration of tenyears from the date of the decree, and it is clear that what is statedin subsection (3) must be read subject to that general provisioncontained in subsection (1) as regards the time frame. Besides,the opening words of subsection (3) “subject to the provisionscontained in subsection (2)“ would itself attract the limitation of tenyears specified in that subsection.”
In the instant case it is quite clear that the plaintiff-appellant did 13°not apply for the execution of the decree on the basis that thejudgment-debtor the defendant-respondent has by fraud or forceprevented the execution of the decree at some time within 10 yearsimmediately preceding the date of the application. The provisions ofsubsection 2 of section 337 of the Civil Procedure Code as amendedby Act, No. 53 of 1980 would therefore not be applicable to the instantcase. It is to be noted that the fact that of defendant-respondentobjecting to substitution when application was first made, cannot beheld against the defendant-respondent, for the Court upheld theobjection of the defendant-respondent.140
It was also contended by the counsel appearing for the plaintiff-appellant that in view of the special circumstances of this case theCourt should deduct the period from the date of disappearance ofthe original plaintiff to the date on which she was presumed in law
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to be dead from the 10 years stipulated in section 337 of the CivilProcedure Code. In fact, various formulaes in deducting this periodare set out in the written submissions. However, I am unable to acceptthese formulaes for deducting any period from the 10 year periodstipulated in section 377 of the Civil Procedure Code, for section 337is very clear and specific that no application to execute a decree shallbe granted after the expiration of ten years from the date of the decreeand as stated above section 337 (2) will not apply as no fraud orforce has been pleaded by the plaintiff-appellant as having preventedhim from applying for execution of the decree which are the onlygrounds contemplated in the said section 337 as empowering Courtfrom granting an application for execution of a decree after theexpiration of the said term of ten years.
It must also be noted here that the Counsel appearing for thedefendant-respondent also took up a preliminary objection that theorder of the learned District Judge refusing the application for writis not a final order but an interim order made in the course of theaction and hence no direct appeal would lie. However, at the hearingof the appeal, Court was informed that he was not pressing the saidpreliminary objection.
In view of the above reasoning, I am of the view that there isno reason to disturb the order of the learned District Judge dated04. 09. 1998 refusing the issue of writ. Accordingly, the appeal ofthe plaintiff-appellant is dismissed with costs.
DISSANAYAKE, J. – I agree.
Appeal dismissed.
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