097-NLR-NLR-V-61-NAZEER-AHAMED-Petitioner-and-BANK-OF-CEYLON-et-al-Respondents.pdf
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Nazeer Ahamed v. Bank of Ceylon
Present: H. N. G. Fernando, I., and T. S. Fernando, J.
NAZEER AHAMED, Petitioner, and BANK OF CEYLON et al.,
Respondents
■S. G. 479—Application for Conditional Leave to appeal to the Privy Councilin S. G. 93 (Inty.) and 481 D. C. Colombo, 3361j MB
■Privy Council—Decree relating to immovable property—Execution pending appeal—Appeals (Privy Council) Ordinance (Cap. 85), Schedule, Buies 7, 8, 9—CivilProcedure Code, ss. 217, 325, 327.
The word “ duty ” in Rule 7 of the Schedule to the Appeals (Privy Council)Ordinance means an act the performance of which is enjoined by a decreeunder any of the Heads A to E in section 217 of the Civil Procedure Code.
H. 2T. G. 3P Bi42'TA2CD O, J.—Dfazeer Ahamed v. Bank-of Ceylon
403
Accordingly, execution of a decree to yield up possession of immovable propertymay be allowed under Rule 7 during the pendency of an appeal to the PrivyCouncil. Rule 9 would not be a bar in such a case.
Execution will be allowed under Rule 7 unless “ real and substantial justicerequires that execution should be stayed ”. The burden of establishing thisexception is upon the appellant.
Application for conditional leave to appeal to the Privy Conncil.
Sir Lolita JRajcvpakse, Q.C., with E. B. S. B. Goomara&wamy, D. G. W.Wickremasekera and B. Ismail for the 2nd respondent-petitioner.
W. Jayewardene, Q.G., with G. G. Weeramantry and G. P. Fernando,for the plaintiff-respondent.
M. Markhani. with B. D. B. Jayasekera, for the 1st defendant-respondent.
Our. adv. vult.
December 19, 1958. H. N. G. Ferstastdo, J.—
After hearing arguments, we allowed the application made by the2nd respondent-appellant for conditional leave to appeal to Her Majestyin Council against the judgment of this Court delivered on 21st November1958, and we also made order allowing the application of the plaintiff -Tespondent to the main appeal for execution of that judgment. We nowset out our reasons for the latter order. We allowed no costs for thereason that each party Was successful in his application.
The plaintiffhad on 27th July 1953 obtained a decree in a hypothecaryaction instituted against one A. E. M. TJsoof who was at that stage theonly defendant. The mortgaged premises were sold in 1955 in executionof the decree and were purchased by the plaintiff. The Fiscal, who hadbeen ordered to deliver possession of the premises, reported to the Courtthat one Nazeer Ahamed claimed to be in possession of the premisesunder a lease from the defendant. The plaintiff thereupon made anapplication to the District Court under Section 325 of the Civil Pro-cedure Code in the usual terms, but the Court, instead of acting underthat section or under Section 327A, caused the petition of the plaintiffto be numbered as a plaint and investigated Nazeer Ahamed’s claimunder Section 327. In this way, Nazeer Ahamed came to be styled the2nd defendant, and he filed answer refusing to vacate the premises onthe ground that he Was the lessee thereof, under a deed dated 15thJanuary 1955, for a period of five years from 1st August 1954. The onlyissue framed at that investigation was whether he could be ejected inthose proceedings. Apart from certain admissions on the part of the2nd defendant, no evidence was led in the District Court. Two questionsof law were raised upon the issue just mentioned : (1) whether the 2nddefendant was bound by the hypothecary decree, and (2) whether hewas liable to be ejected having regard to the provisions of the Rent
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H. NT. G. FERNANDO, J.—Nazeer Ahnmed v. Bank of Ceylon
Restriction Act. On the first question the learned District Judge heldthat the 2nd defendant was hound by the decree, on the ground that theUs pendens of the hypothecary action had been registered, and thehypothecary decree entered, before -the execution of the lease to the 2nddefendant. On the second question the Judge held against the 2nddefendant on the ground that there was no proof that the premises weresubject to the Rent Restriction Act. On appeal to this Court, thejudgment and decree were affirmed, and the application I am nowconsidering is for the execution of the judgment of this Court pendingappeal to Her Majesty in Council.
I have first to consider the argument that Rules 7 and 8 of the Rulesin the Schedule to the Privy Council Appeals Ordinance (Cap. 85) do notapply to a judgment relating to the occupation of immovable property,,and that a recent decision of this Court to the contrary effect TheVenerable Baddegama Piyaratana Nayaka Thero v. The Venerable Vagis-varachariya Morontuduwe Sri Naneswara Dhammananda Thero ei al., 1should not be followed. It was argued with much insistence, firstly thatRule 9 is the only Rule which applies in relation to such a judgment, andsecondly that the terms of Rule 7 do not cover such a j udgment inasmuchas it does not require the appellant to perform a duty.
Rule 9 confers no power on this Court to allow or to stay execution of'a judgment against which an appeal is being preferred. It pre-supposesthat execution is either being allowed or stayed, and provides, for oneclass of case (where the judgment will not involve a change in the actualoccupation of property) that no security shall be required from eitherparty, and for the opposite class of case a criterion for determining the-maximum of security. What power then does Rule 9 assume to be inexistence, if it is not the power conferred by Rules 7 and 8 respectively-to allow or to stay execution on terms 1 Counsel’s answer is that thepower which Rule 9 assumes the Court to enjoy is an inherent or implied,power. That would mean that the Rules, for some reason which is quiteobscure, have conferred an express power in relation to some judgments-only, and have relied on inherent or implied power for the purposes of theWide and common class of judgments relating to immovable property.
The decision in Garthelis Appuhamy v. Sirvwardena 2 is of no assistance,for what was there held was, not that there is inherent or implied powerto execute a judgment, but rather that a judgment declaring a status isincapable of being executed until the stage of a final determination(after appeal) has been reached. That decision, at the best, onlyestablishes that there may be some judgments which this Court cannotenforce while an appeal is pending. It does not support the theory thatRule 9 assumes some inherent or implied power to exist.
I myself have no hesitation in taking the view that the effect of thejudgment in this case is to require the appellant to perform a duty. Thosewords in Rule 7 have to be considered in the context of the provisions inSection 217 of the Civil Procedure Code which define the different objectsof deerees. A decree made under any of the Heads A to E in that section
*(1958) 60 N. B. R. 61.
(1951) 53 N. L. R. 438.
EC. N. G. FERNANDO, J.—Nazeer Athamed v. Bank of Ceylon406
requires a person to do some act; and it is only Head A that refers tothe payment of money. If therefore, the expression “ perform a duty ”in Rule 7 is construed narrowly, as not referring to a decree underHead C, then equally the rule will not cover decrees falling under Head B,D or E, and the expression might even become meaningless. Thisabsurdity is avoided if “ duty ” is taken to mean an act the performanceof which is enjoined by a decree. Where proceedings under Section 327of the Code terminate by a decree against an unsuccessful claimant, thedecree enjoins him to perform the act specified in Head B of Section 217,namely to yield up possession of immovable property and thus requireshim to perform a duty within the meaning of Rule 7. I have thereforeto consider the present application on the basis that Rules 7 and 8 laydown the principles to be followed upon an application for executionpending appeal of a decree under any of the Heads A to E in Section 217.
The principle appears to be that execution will be allowed unless“ real and substantial justice requires that execution should be stayed ”.The burden of establishing this exception is upon the appellant, and thatburden is not in my opinion discharged by merely pointing to thehardship and inconvenience which any appellant must suffer if he has tosurrender immovable property under decree which is liable to be setaside in appeal. If that was intended to be a sufficient ground forrefusing execution, one would expect to find express provision makingstay of execution the general rule in land actions.
Counsel has relied on the English ease of Wilson v. Church 1 in supportof the principle that “ when a party appellant is appealing, exercisinghis undoubted right of appeal, this Court ought to see that the appeal,if successful, is not nugatory No authority was cited to us to showthat this principle has been applied in the case of appeals from thisCourt to Her Majesty in Council, nor is it easy to reconcile such aprinciple with the apparently different criterion underlying Rules 7 and 8.But Cotton L. J. observed in the same judgment that “ if there had beenany case made by the plaintiff that this appeal was not bona fide, that itwas for some indirect purpose and not for the purpose of trying whetherthe judgment of this Court was right, the case would have stood in adifferent position ”. There is much to be said against the bona fides ofthe present appeal. If the appellant did enter into occupation of thepremises under his lease, he did so in such circumstances that he musthave known at least of the possibility of his being ousted in execution ofa decree Which had priority over his lease. The entry of the decreewhich he now appeals against, even if it be ultimately reversed, was apossibility which should have been anticipated at the time of theexecution of the lease.
In my opinion, his appeal is not bona fide in so far as it raises thequestion whether the Rent Restriction Act over-rides the provisions ofSection 16 of the Mortgage Act. The plea was taken in the appellant’sanswer filed in the District Court in April 1956, but he omitted to leadevidence to establish that the premises were subject to rent control.
1 {1879) 12 Ch. 454.
fradesan v. ttamasartny
406
Even if, as counsel now suggests, the Privy Council were to hold thatthis omission is not fatal, the omission to lead evidence which this Courthad earlier held to he necessary in cases under the Pent Restriction Actshows that the plea was not taken ingood faith, and even leads to thesuspicion that the annual value of the premises does not fall within theprescribed limit. Moreover, one cannot disregard the observations ofSansoni, J. in the main judgment under appeal as to the suspicion arisingfrom the fact that the appellant is the son-in-law of the principal debtor.
The appellant’s other ground of appeal will be that he is entitled tocontinue in possession under his lease. Only seven months now remainout of a five-year term. I do not think it can he seriously urged thatan ultimate judgment in his favour will have been rendered nugatory bythe appellant being now compelled to surrender possession when only aone-eighth part of his term has yet to run. If, on the other hand, a stayof execution is now granted pending the final determination of the appeal,the result might well be that the appellant remains in possession for aconsiderable period beyond the term of his lease. cc Peal and substantialjustice ” does not require that we assist the appellant to achieve such aresult. I
I would add for the purposes of record that we ordered the plaintiff todeposit Rs. 10,500 with the Registrar of this Court as security.
T. S. Eebnando, J.—I agree.
Applications allowed.