007-SLLR-SLLR-1995-2-RAJADURAI-V.-EMERSON.pdf
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Sri Lanka Law Reports
[1995] 2 Sri L.R.
RAJADURAI
V.
EMERSON
COURT OF APPEAL.
S. N. SILVA, J. P/CA;
DR. RANARAJA, J.
A. APPLICATION NO. 1215/90WITH CALA 192/90
C. MT. LAVINIA 954/LJANUARY 23, FEBRUARY 10, 1995.
Rei Vmdicatio – Settlement – Applicability of Civil Procedure Code (Amendment)S 337(1) of Act, 53 of 1980 – Retrospective effect – Doctrine of Binding precedent- S 6(3) Interpretation Ordinance.
The plaintiff-respondent who was the wife of the Defendent-petitioner and theowner of the premises in suit, instituted action for declaration of title andejectment. Settlement was arrived at with the defendant agreeing to vacate thepremises on or before 15.7.1978 with writ to issue without notice on failure.
Plaintiff died on 3.10.1979 without making an application for execution. Therespondent, the administrator and sister of the plaintiff was substituted on12.6.1986 in terms of Section 395 of the Civil Procedure Code and obtained writ.The Court of Appeal set aside the Order and observed that the application shouldhave been under Section 339(1) and not under 395.
Another application for Writ under Section 339(1) was made by the administrator,which was resisted on the basis that in terms of Section 337(1) of Act 53 of 1980,since a period of ten years have elapsed after the decree, writ could not issue.The District Court allowed the application for writ.
Held:
The Decree was entered on 15.6.1976 and the Application for writ was finallymade after 10 years.
CA
Rajadurai v. Emerson (Silva, J. P/CA)
31
The ten year limitation period does not apply in relation to a Decree forimmovable property, prior to the passing of Act 53 of 1980 on 11.12.80.
By amended S 337(1) of Act 53 of 1980, the ten year bar became applicableto all Decrees, other than a Decree granting an Injunction, subject to theexceptions that are provided.
The Consent Decree was entered on 15.6.1976, the Decree being one forimmovable property and possession, the 10 year bar would not have applied inrelation to its execution in terms of S. 337(1) as it stood then.
The amendment to S 337(1) in Act 53 of 1980 would not apply retrospectivelyto Decrees for immovable property entered prior to the date of coming intooperation of Act 53 of 1980.
The amendment brought in by Act 53 of 1980 cannot be regarded as purelyprocedural legislation in so far as it purports to affect the vested right of thejudgment-creditor.
On the principle of judicial precedent, the Court of Appeal is bound by adecision of the Supreme Court in a case directly in point.
Cases referred to:
Charles Singho v. Jinadasa Appuhamy 58 C.L.W. 83.
Haji Omar v. M. H. Bodidasa S.C. 48/93 – S.C. Minutes 6.12.94.
APPLICATION in Revision of the Order of the District Judge, Mt. Lavinia.
H. L. de Silva, P.C. with S. Mahenthiran for defendant-petitioner.
P. A. D. Samarasekera, P.C. with G. L. Geethananda for plaintiff-respondent.
Cur. adv. vult.
March 08,1995.
SILVA, J. P/CA
This application has been filed by the Petitioner (judgment-debtor) inrevision from the order dated 21.11.1990 made by the District Judge.By that order Learned District Judge allowed the application of theRespondent (substituted judgment creditor) for execution of decree.
The plaintiff was the wife of the petitioner and the owner of thepremises in suit. Parties were divorced but the petitioner continued inoccupation of the premises. The above action was filed for
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declaration of title and ejectment. The action was settled on the basisof which writ was to issue for the ejectment of the petitioner withoutnotice after 15.07.78. The plaintiff was taken ill and she died on03.10.79 without making an application for execution of decree. Hermother was substituted as plaintiff, which order was set aside by thisCourt in Appeal (CALA 86/79). The respondent being the sister of theplaintiff obtained letters of administration in respect of the estate of theplaintiff. She was substituted as plaintiff on 12.6.86 in terms of section395 of the Civil Procedure Code and after notice to the petitioner writwas issued against him. In appeal (CALA 154/87) this Court set asidethe order for substitution and the subsequent order issuing writ on thebasis that the application should have been made under section339(1) and not under section 395 of the Civil Procedure Code. Itappears that in the previous appeal it had been held that theapplication for substitution should have been made under section 395.Be that as it may, the respondent made a fresh application forexecution of decree in terms of section 339(1) with notice to thepetitioner which was objected to on the basis that execution cannot begranted in view of the provisions of section 337(1), as amended by ActNo. 53 of 1980, since a period of more than ten years has elapsed afterthe date of decree. Learned District judge disallowed that objectionand granted execution of decree by the impugned order. The operationof the order has been stayed by this Court in this application.
The ten year limitation as to the execution of a decree wasapplicable in terms of section 337(1) prior to the amendment of 1980 inrespect of "a decree for the payment of money or for the delivery ofother property.” In the case of Charles Singho v. JinadasaAppuhamym, it was held by the Supreme Court (Basnayake, CJ, withSansoni, J. agreeing) that the phrase “other property” should beconstrued ejusdem generis with the word "money" and wouldtherefore mean other movable property. Therefore the ten yearlimitation did not apply in relation to a decree for immovable propertyprior to the 1980 amendment which came into force on 11.12.1980.By the amendment of 1980 the words “a decree for the payment ofmoney or for the delivery of other property" referred above wereomitted and in terms of the provision as redrafted, the ten year barapplies in relation to all decrees other than a decree granting aninjunction, subject to the exceptions that are provided.
CA
Rajadurai v. Emerson (Silva, J. P/CA)
33
The consent decree was entered in this case on 15.06.76. Thedecree being one for immovable property and possession, the tenyear bar would not have applied in relation to its execution in terms ofsection 337(1) as it stood then, according to the decision in CharlesSingho’s case (supra). The question whether the ten year barintroduced in respect of all decrees by the amendment of 1980 whichcame into force on 11.12.80, will apply retrospectively to decreesentered prior to that day was considered by the Supreme Court inthe case of Haji Omar v. M. H. Bodidasa (2>. Upon an exhaustiveanalysis of the relevant provisions and the applicable case law,Dheeraratne, J. held that the amendment would not apply in relationto decrees for immovable property entered prior to 11.12.1980 beingthe date on which the amendment came into operation. It was heldby Their Lordships that the judgment creditor’s right to enforce thedecree in his favour is a substantive right and is not a matter ofprocedure. On that basis it was held that the amendment of 1980"cannot be regarded as purely procedural legislation insofar as itpurports to affect (or rather to destroy) the vested right of thejudgment creditor”. This Court is necessarily bound by the decisionof the Supreme Court given in relation to the interpretation of section337(1) of the Civil Procedure Code, as amended in 1980, in theabove case. The facts are broadly similar and there is no basiswhatever to seek to distinguish the facts of this case from those incontemplation when the Supreme Court made the said decision.
Learned counsel for the petitioner has submitted that the decision ofthe Supreme Court referred above needs reconsideration. Such asubmission cannot be considered by this Court considering theprinciple of binding precedent. He had also submitted that theSupreme Court made use of the provisions of section 6(3) of theInterpretation Ordinance for the purpose of arriving at its decision. Onthis basis it was submitted that section 6(3) “does not come into play”in relation to the matter of interpreting section 337 as amended. Wenote that it has been specifically observed by the Supreme Court thatthe “further question as to whether the judgment creditor’s right was an'acquired right’ under the repealed law” within the meaning of section6(3)(b) of the Interpretation Ordinance does not arise. Therefore wehave to observe that the submission has been made without a properappreciation of the basis of the decision of the Supreme Court. On a
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consideration of the submissions of Learned Counsel we are of theview that the decision of the Supreme Court in the case or Haji Omar{supra} is directly in point in relation to the question that was decidedby the Learned District Judge in the order dated 21.11.1990.Accordingly, we see no merit in this application. The application isdismissed. The petitioner will pay Rs. 5,000/- as costs to therespondent.
DR. RANARAJA, J. -1 agree.
Application dismissed.