009-NLR-NLR-V-19-SENATHIRAJA-v.-MUTHUNAYAGAM.pdf
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1016.
Present: Ennis J. and Shaw J.
SENATHIRAJA v. MUTHUNAYAGAJtf.
332-—D. C. Negombo, 10,204.
Appeal to the Privy Council—Execution of judgment pending appeal.
Where a successful party in appeal applies for execution of hisdecree in the DistrictCourt,after applicationhadbeen madeto
the Supreme Court for conditional leave to appeal to the PrivyCouncil,he should give notice to the appellant ofhis application
for execution.
A. decree which requires a party to yield up possession of im-movable property is a decreewhich imposestheperformanceof
a duty within the meaning of rule 7 of schedule I. to OrdinanceNo. 21of 1909. TheSupremeCourt may, underrule7, order
security to be given beforeexecutionof judgment in such a case.
Section 777 of – theCivil Procedure Code isnotsuperseded.by
the rules in schedule I. to Ordinance No. 21 of 1909. .
rpHE facts "appear from the judgment.
A. St. V. Jayewardene, in
E. W. Jayewardene, contra
(her. adv. vult.
February 27, 1916. Ennib J.—
This is an applicationfor leaveto appeal to thePrivyCouncil,
and for anorder to stayexecutionon the appellantsgivingsecurity
( si )for costs, or, in the alternative, that the respondents be ordered togive security before the execution of the decree.
The application for leave to appeal is not opposed.
As regards the stay of execution, it appears that two days afterthis application was made to the Supreme Court the respondentsmoved the District Court, under section 777 of the Civil ProcedureCode, apparently without disclosing that this application waspending before the Supreme Court, and obtained execution of thedecree without notice to the appellants. I am satisfied that hadthe District Court been aware of the application pending in theSupreme Court it would have stayed. proceedings upon the re-spondent’s motion till the Supreme Court application had been•disposed of; and, further, I am of opinion that the plaintiff-respondent should have given notice of his application forexecution to the defendant. The defendant would then have hadan opportunity to. bring the pending proceedings in the SupremeCourt to the notice of the District Court. Section 777 specifies theprocedure to be adopted in executing decrees an application under thesection—the rules for the execution of decrees in an action areto be followed. Section 763 requires that the judgment-debtor-shall be made a respondent when the decree to be executed isappealed against, and there is no reason that I can see why theprovisions of section 763 should not apply, mutatis mutandis, whenan appeal against the decree is being made to the Privy Council.
The execution of the decree haring been obtained in the DistrictCourt ex parte, and while tile application to stay execution waspending before the Supreme Court, I should have no hesitation insetting aside, if necessary, in revision, the order of the DistrictCout- granting execution.
With regard to. the application before the Supreme Court, thisis governed by the rules in schedule I. of the Appeals (Privy Council).Ordinance, 1909. .It was urged for the appellants that rule 9.exclusively, governed the question where the subject of litigationconsisted,.' as in this case, of immovable property. I am not ofthat opinion. Buie 7 empowers the Supreme Court to directexecution of the judgment if the person in whose favour it is givenshall, before the. execution, give security. This rule applies onlywhere the decree requires the appellant to pay money or perform aduty. In my opinion a decree which requires a party to yield uppossession of immovable property (see seotion 217) is a decree whichimposes the- performance of a duty; and the Supreme Court haspowers in such a case under rule 7. Buie 8 enables the oppositeparty to obtain a stay of execution when “ real and substantialjustice" requires it. Buie 9 specifies the quantum of security
1916.
Esins J.
Senathitxyav. Mvthu-naf/agam
1916.
Ennis J.
Senathirajav. Muthv-nayagam
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whitfh may be ordered where the property is immovable property,Sait rule 10 specifies the nature of the security to be demanded inthe case of movable property.
It has already been held in Sevatiather v. Thamothemmpillat<P- C. Jaffna, 9,671 *) and Hazipeer v. Catheravelu (86—D. C. Galle,12,022 2) that section 777 of the Code is not superseded by the rulesin the schedule to the Ordinance No. 81 of 1909. The rules in theschedule merely supplement the provisions of section 777, andempower the Supreme Court to make orders in certain cases “ beforethe execution of the decree ” (rule 7), and stay – of execution (rule 8)cannot apply where execution has already been effected. In thesecircumstances it is necessary, if any order is to be made by thisCourt, to set aside the ex parte order of the District Court grantingexecution.
In view of the years which have elapsed before the respondentfiled action, and the long possession by the appellant, I think theproper order would be to direct the judgment to be carried intoexecution on the respondent giving security, which I would fix atRs. 7,500, on the principle laid down in rule 9.
I would accordingly grant leave to appeal to the Privy Council;set aside, in revision, the order of the Distict Court grantingexecution; and direct execution on the respondents giving securityfor Rs. 7,500. As the respondents are already in possession, X -would allow them twenty-one days in which to give security.
Shaw J.—I agree.
•Security ordered to be given.
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