SRI SKANT)A RAJAH, J.—Vagiatvaracharya Morontuduwe Sri Qnaneewara 03Dhammananda Nay aka Thero v. Kalukondayaiwe Pannas ek era
Nay aka The.ro
1965Present: Sri Skanda Rajah, J.t and Alles, J.
VAGISWARACHARYA MORONTUDUWE SRI GNANESWARADHAMMANANDA NAYAKA THERO, Petitioner, and KALU-KONDAYAWE PANNASEKERA NAYAKA THERO, Respondent
S.C. 245/64—Application for Stay of Execution of Decree in
C. Colombo, 2882/L
Privy Council—Execution of decree of Privy Council—Order made by Supreme Courtdirecting District Court to enforce the decree—Separate application to DistrictCourt for execution unnecessary—Appeals (Privy Council) Ordinance, Schedule,Rule 31—Civil Procedure Code, as. 224, 323.
Where, in an application made under Rule 31 of the Appeals (Privy Council)Ordinance for execution of a decree of the Privy Council for delivery of im-movable property, the Supreme Court transmits the Order of the Privy Councilto the District Court requiring it to enforce and execute the Order, a separateapplication for execution of the decree need not be made to the District Courtin terms of section 323 of the Civil Procedure Code before the District Courtdirects a writ of execution to issue.
AlPPLICATION for stay of execution of a decree in the District Court,Colombo.
C. Thiagalingam, Q.C., with C. G. Weeramantry, Walter Wimala-chandra and R. L. de Silva, for 1st Defendant-Petitioner.
B. Wikramanayake, Q.C., with D. R. P. Goonetilleke, for substitutedPlaintiff-Respondent.
February 11, 1965. Sri Skanda Rajah, J.—
Mr. Wikramanayake Q.C., counsel for the substituted-plaintiflf-respon-dent, has taken the preliminary objection that this Court has nojurisdiction to entertain this application.
The facts briefly are these : The deceased plaintiff filed this actionin the District Court of Colombo in July, 1942, making the presentpetitioner the first defendant. Decree was entered against the firstdefendant and an order was made to eject him. The first defendantappealed to this Court. This court affirmed the judgment of the DistrictCourt and ordered the defendant to be ejected from the premises :Vide 59 N. L. R. page 12. Then the first defendant appealed to thePrivy Council. Pending appeal, the original plaintiff died and substitutionwas effected under Rule 27 of the Appeals (Privy Council) Ordinance.—(Vide 63 N. L. R. page 278). The appeal was thereafter heard and the
64 SRI SKA NT) A RAJAH, J.— Vagiawaracharya Morontuduwe Sri GnaneawaraDhammananda Nay aka Thera v. Kalukondayatve Pannas ekera
Nay aka Thera
concurrent findings of the District Court and this Court were affirmedby the Privy Council and the first defendant was ordered to be ejected.(Vide (1963) 65 N. L. R. 196). Thereafter, an application for executionwas made to this Court on the 18th of March, 1964, (i.e. nearly twenty-two years after action) under Rule 31 of the Appeals (Privy Council)Ordinance.
Rule 31 enacts;
“31. Any Order which Her Majesty in Council may think fit tomake on an appeal from a judgment of the court may be enforcedand executed in manner hereinafter appearing :—
whoever desires to enforce or to obtain execution of any Order of
Her Majesty in Council shall apply by petition, accompaniedby a certified copy of the decree or Order made in appeal andsought to be enforced or executed, to the court ;
such court shall, when the court which made the first decree
appealed from is the Supreme Court, enforce and executesuch order in the manner and according to the rules applicableto the enforcement and execution of its original decrees ;but when the court which made the first decree appealedfrom is a court other than the Supreme Court, shall transmitthe Order of Her Majesty to the court which made such decree,or to such other court as Her Majesty by Her said Ordermay direct, and shall (upon the application of either party)give such directions as may be required for the enforcementor execution of the same ; and the court to which the saidOrder is so transmitted shall enforce and execute it accordinglyin the manner and according to the rules applicable to theenforcement and execution of its original decrees”
When the application of the 18th March, 1964, was made to thisCourt, this Court transmitted the Order of Her Majesty in Council tothe District Court of Colombo requiring it to enforce and execute theOrder.
Mr. Wikramanayake submits that the District Judge was not calledupon to exercise any discretion. He was only called upon to carryout the order of this Court. Therefore, an application to revise hisorder to issue a writ will not lie. This submission is in our view, sound.
Mr. Thiagalingam submits that: an application has not been made tothe District Court in terms of Section 323 of the Civil Procedure Code.No application has been made in the District Court under Section 224with the necessary modifications. Therefore, there being no applicationfor execution to the District Judge the latter could not lawfully issuewrit.
The District Judge held that no application need be made to him.We are of the view that the application made to this Court as requiredby Rule 31(a) is sufficient. A separate application need not be madeto the District Court.
The words **… .in the manner and according to the rules appli-
cable to the enforcement and execution of its original decrees ” in Rule31 (b) quoted above do not require an application to be made in theDistrict Court itself as provided by Section 323 of the Civil ProcedureCode.
Therefore, we uphold the preliminary objection and refuse this appli-cation for stay of execution with costs. The writ should be executedexpeditiously. It is already very nearly twenty-three years after theinstitution of this action.
Atx.ss, J.—I agree.
VAGISWWARACHARYA MORONTUDUWE SRI GNANESWARA DHAMMANANDA NAYAKA THERO, Petitioner