Silva v. King.
1935Present: Akbar S.PJ. and Poyser J.
SILVA v. KING.
161—D. C. (Inty.) Colombo, 48,762.
Execution—Decree passed by the Supreme Court—Appeal to Privy Council—District Court has no power to execute decree—Powers of Supreme Courtto grant execution subject to security—Privy Council (Appeals)Ordinance, No. 31 of 1907, Schedule 1, Rule 7.
A party is not entitled to obtain from the District Court executionof a decree passed in appeal and against which the Supreme Court hasgranted conditional leave to appeal to the Privy Council. In such acase the Supreme Court has power to direct that the judgment appealedfrom shall be carried into execution upon the condition that the decree-holder gives security for the due performance of the order of the PrivyCouncil.
^PPEAL from an order of the District Judge of Colombo.
Choksy (with him -H. N. G. Fernando), for plaintiff, appellant.
H. V. Perera (with him D. W. Fernando), for defendant, respondent.
AKBAR S.P.J.—Silva v. King.
July 24, 1935. Akbar SP.J.—
On April 5, 1933, decree was entered in favour of the plaintiff for acertain sum of money and costs and plaintiff applied for execution onthe same day. On April 7, 1933, writ was issued returnable on April 15,1933, but defendant filed a petition of appeal also on April 7, 1933, andon April 12, 1933, execution of this writ was stayed until the decisionof the appeal. On March 28, 1934, the appeal was heard and dismissedbut defendant on the same day gave notice of her intention to applyfor conditional leave to appeal to the Privy Council to the plaintiffwhich notice was served on the plaintiff and his proctors. By applica-tion dated April 20, 1934, plaintiff applied for reissue of the writ ex parteon May 4, 1934, without disclosing the fact that he had been served onMarch 28, 1934, with notice of the defendant’s intended application forconditional leave to appeal to the Privy Council, which motion wasallowed on the same day, i.e., May 4, 1934, and the writ was reissued onMay 7, 1934. On May 18, 1934, defendant filed petition and affidavitand moved that execution of the writ be stayed. Notice was issued onthe plaintiff for May 25, 1934. In the meantime on April 20, 1934(i.e., the same day on which application for reissue of writ by plaintiffwas signed), the defendant filed her application for conditional leave toappeal to the Privy Council in the Registry of the Supreme Court andon April 25, 1934, leave was granted by the Supreme Court. So thatit will be seen that when the Court allowed plaintiff’s ex parte applicationfor reissue of writ on May 4, 1934, the defendant had already beengiven conditional leave to appeal. This fact was not known to theDistrict Judge when he reissued writ and when the defendant’s motionfor stay of execution was finally heard, the District Judge quite rightlyin my opinion vacated his order allowing a reissue of the writ made onMay 4, 1934. It is this order which has come up in appeal before us now.Under rule 7 of the -rules in Schedule 1 of Ordinance No. 31 of 1909,regulating the procedure on appeals from the Supreme Court to thePrivy Council the Supreme Court has the power when granting leaveto appeal to the Privy Council to direct that the judgment appealedfrom (when it orders the appellant to pay money or perform a duty)shall be carried into execution upon the condition that the decree-holdergives security to the satisfaction of the Supreme Court for the dueperformance of the order of the Privy Council. And by rule 8 there is aproviso that nevertheless the appellant can in his turn get the executionstayed on his satisfying the Supreme Court that real and substantialin.i»stice will be done to him if the writ were executed, and on his givingsecurity to carry out the orders of the Privy Council. Although noticewas served of the intended application for conditional leave on March 28,1934, the plaintiff did not apply for any order under rule 7 to this Court,but his counsel argues that he has the right to apply for execution directto the District Court. This he undoubtedly may do,' so long as noproceedings are taken by the appellant to carry his appeal to the PrivyCouncil. But here on the very day that the writ was reissued, i.e., onMay 4, 1934, the Supreme Court had already allowed conditional leavein a case in which defendant had the right to appeal to the Privy Counciland of which application the plaintiff-appellant had notice but which
MAARTENSZ J.—Paranavitame v. District Road Committee, Galle. 135
he had not disclosed to the District Court. When the District Courtwas informed of this fact for the first time by defendant when she appliedfor stay of execution, the Judge was quite right in my opinion in recallingthe writ for section 224 and section 777 of the Civil Procedure Codecan have no application to a decree which is subject to an appeal to thePrivy Council in the sense that the Supreme Court had allowed conditionalleave to appeal at that time. Mr. Choksy’s argument comes to this.He could have applied to this Court for an order under rule 7, in whichcase his client would have to give security, but we are asked instead ofthis to send the case back to the District Judge in order that he mayissue writ of execution without such security being given. It seemsto me that there is a great deal of force in-Mr. Perera’s argument thatwhen an appeal has been filed it prevents the Court which passedthe decree from executing it pending such appeal, unless there is pro-vision in an Ordinance by which such power is given expressly (seeMohamed v. Annamalai Chettiar'). As I have said the only statutoryprovision when leave to appeal to the Privy Council has been granted eitherconditionally or finally for execution of the decree is to be found inrules 7 and 8. Under rule 7 it is open to me to make such an order inthis appeal (see Abeyesekera v. Alahakoon2 and Senathiraja v. Muthu-nayagam and while dismissing the plaintiff’s appeal with costs I makeorder that the judgment appealed from may be carried into executionupon the plaintiff giving security to the satisfaction of the * Registrarin the sum of Rs. 15,000 for the due performance of such order as HisMajesty in Council shall think fit to make thereon.
Poyser J.—I agree.
SILVA v. KING