022-SLLR-SLLR-1991-V2-MRS.-RONALD-DE-LIVERA-V.-TALAGUNA.pdf
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Sri Lanka Law Reports
[1991] 2 Sri L.R.
MRS. RONALD DE LIVERAV.
TALAGUNA
COURT OF APPEAL.
PALAKIDNAR, J. A AMEER ISMAIL, J-.
C. A. L.A. 11/91.
A. NO. 224/90.
C. COLOMBO 4925/ZL.
SEPTEMBER 16,1991.
Appeal • Leave to appeal – Execution proceedings – Whether order inexecution proceedings is interlocutory or final.
sc
Mrs. Ronald De Silva v. Talaguna (Palakidaar, J.)
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An order to stay execution proceedings made by the Court of Appeal isan interlocutory order. The Court of Appeal does not have jurisdiction togrant leave to appeal to the Supreme Court on an interlocutory matter.
Cases referred to:
Chitty v. Parameswary C.A.I..A. 40/79, Minutes of the Court of Appealof 25.02.1983.
Rasheed Ali v. Khan Ali [1981] 1 Sri L.R. 262.
APPEAL for leave to appeal to the Supreme Court.
H.L. de Silva P.C. with Lucian Perera for respondent – petitioner.
S. Mahenthiran for petitioner – respondent.
Cur.adv.vu/r.
OCTOBER 01, 1991.
PALAKIDNAR, J.
The Petitioner in this application is seeking leave to appealto the Supreme Court from an order delivered on 18.3.91 stay-ing the operation of the Writ of Execution issued by the Dis-trict Court of Colombo. The Petitioner had in addition filedan application to revise the order of this Court (C.A, 224/90).
Learned President’s Counsel for Petitioner rested his argu-ment on the basis that the order of this Court was a finalorder in terms of Article 128(1) of the Constitution in so far asthe application of the Respondent has been allowed by thisCourt.
In this case the proceedings that came up before this Courtrelate to execution proceedings. The order of this Court wasthat execution proceedings should be stayed till the final der-termination of the appeal. The scope of the order of this Courtwas defined by the judgment of the Supreme Court and the
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order of this Court was made in compliance with the directiongiven therein. The directions related to the grant of securityand such ancillary matters in the event of this Court stayingwrit or allowing it.
The time frame allowed to this Court made it imperativethat an interim order had to be made to resolve the questionof the writ of execution within it. The matter adjudicated upondid not in any way include the main matter of the right of theparties in regard to the ownership and tenancy of the propertyin dispute.
It is quite clear that execution proceedings are incidental tothe main matter and execution pending appeal is pointedly andindisputably so.
In Chitty v. Parameswary (1) it was held that a step in exe-cution between parties involves an interlocutory order and nota final order.
In Rasheed Ali v. Khan Ali (2) Justice Sharvananda (as hethen was) stated that the appellate jurisdiction of the SupremeCourt can be invoked by a party to question an interlocutoryorder or judgment of the Court of Appeal only with the spe-cial leave of the Supreme Court.
The Court of Appeal has no jurisdiction to grant leave toappeal from an interlocutory order.
I hold that* the matter adjudicated upon by this Court inthe application referred to us by the Supreme Court wasclearly in respect of an interlocutory matter relating to theissue of the writ of execution. I therefore dismiss this applica-tion on the basis that the Court of Appeal does not have thejurisdiction to grant leave to appeal to the Supreme Court onan interlocutory matter.
Ameer Ismail J. — I agree.
Application refused.