Waharaka Sobitha ZJnnanse v. Amunugama Piyaratana Unnanse
1953Present: Gratiaen J. and Weerasooriya J.WAHARAKA SOBITHA UNNANSE et al., Appellants,and AMUNUGAMA PIYARATANA UNNANSE et ah,RespondentsS. G. 329—Application for revision in D. G. Kandy, 2,154L
Appeal—Stay of execution pending appeal—Quantum of security that should befurnished by judgment debtor—Civil Procedure Code, s. 761.
Where application is made tinder section 761 of the Civil Procedure Codefor stay of execution of a decree pending an appeal, the security ordered to befurnished by the judgment-debtor should not be unduly excessive. The amountof security should be such as -would reasonably safeguard the interests of the ■- judgment-oreditor in the event of the judgment appealed from being eventuallyaffirmed in appeal. 1 2
1<S. A. Law Reports, Cape Province Division (1938), p. 90.
2(1949) 51 N. L. R. 209.
250 GRATIAEN J.—WaharaJca Sobitha XJnnanse v. Amunugcima Piyaratana
Application to revise an order of the District Court, Kandy.
N. E. Weerasooria, Q.C., with W. D. Chinctsekera, for the 1st and 2nddefendants petitioners.
B. Wikramanayake, Q.G., with H. W. Jayewardene, for the plaintiffsrespondents.
Cur. adv. vult.
September 16, 1953. Gratiaen J.—
The parties to this application, and to the action in the Court below,are Buddhist priests. On 29th June, 1953, the learned Judge enteredjudgment in favour of the 1st and 2nd respondents against the petitionersand the 3rd, 4th and 5th respondents, declaring the property in dispute(consisting of houses and lands situated partly within the Municipality ofKandy) to be comprised in a charitable trust of which the 1st and 2nd re-spondents were entitled to receive the income and profits. The decree alsodirected the judgment debtors to be ejected from the property and to payto the 1st and 2nd respondents damages at the rate of Rs. 2,000 per annumfrom the year 1945 until the property is restored to them.
The property was valued by the 1st and 2nd respondents in their plaintat Rs. 30,000, and has admittedly been continuously in the possession ofthe judgment debtors since the year 1932.
On 6th July 1953, the petitioners filed an appeal to this Court, which isstill pending, against the judgment and decree passed against themand the 3rd, 4th and 5th respondents. In the meantime they had filedan application on 29th June— i.e., on the date on which judgment waspronounced against them—under section 761 of the Civil Procedure Codefor a stay of execution of the decree (which had not yet been formallydrawn up and signed under section 188) pending the determination of theirproposed appeal. A few hours later, the decree having been duly passed,the 1st and 2nd respondents initiated execution proceedings against thejudgment debtors.
On 7th July, 1953, after the petition of appeal had been filed, the learnedDistrict Judge proceeded to inquire into both applications under Chapter-59 of the Code—that is to say, the application of the judgment debtorsfor stay of execution pending the hearing of the appeal, and the counter-application of the judgment creditors for execution notwithstanding thependency of the appeal.
With regard to the application of the judgment’’debtors, the Courtgranted a stay of execution provided that, on or before the 21st July, 1953,they furnished security (a) in a sum of Rs. 50,000 by the hypothecation ofimmovable property, and (6) in a sum of Rs. 15,000 in cash. He further-directed that, in default of due compliance by the judgment debtorswith these conditions, the execution of the decree should proceedunconditionally.
GRATIAEM" J.—Waharaka Sobitha Unnanse v. Amunugama Piyaratana 251
The petitioners complain that the terms imposed on them in regard totheir application for stay of execution are unduly oppressive and that, asthe security ordered bears “ no relation to the facts of the case ”, the de-cision of the learned Judge is tantamount to a summary refusal of theirapplication.
The provisions of proviso (c) to section 761 make it'clear that the amountof security which a Judge may in his discretion fix as a condition of a stayof execution pending appeal should be such as would reasonably safeguardthe interests of the judgment creditor in the event of the judgment appeal-ed from being eventually affirmed by this Court. If one considers theeffect of the learned Judge’s order from this point of view, it seems to methat the security ordered to be furnished by the judgment debtors ismanifestly excessive.
The decree under appeal directs the judgment debtors (a) to band overimmovable property which the judgment creditors themselves have valuedat Us. 30,000 and the annual rental value of which has been assessed bythe Court at Rs. 2,000, (6) to pay damages which had, at the date of thedecree, amounted to approximately 'Rs. 16,000 and (c) to pay continuingdamages, until restoration of the property, at the rate of Rs. 2,000 perannum. There is no evidence of any substantial risk that the conditionof the property will deteriorate pending the appeal, and I find it difficultto discover any cogent reason for ordering the judgment debtors tofurnish, in addition to a sum equivalent to the damages already accrued,security in a sum of Rs. 50,000. In my opinion, the ends of justicewould be met by substituting for the learned Judge’s order an order thatexecution be stayed pending the hearing of the appeal on condition,that the petitioners and/or the 3rd, 4th and 5th respondents
(а)hypothecate with the Secretary of the District Court of Kandy on or
before the 3lst October, 1953, a sum of Rs. 15,000 in cash assecurity for the due performance of such decree or order as mayultimately be binding upon them in these proceedings, and
(б)also hypothecate with the Secretary of the District Court on or
before the 30th April, 1954, a further sum of Rs. 5,000 assecurity as aforesaid. (The purpose of this part of the order isto safeguard the interests of the judgment creditors in respectof accruing damages payable in terms of the judgment underappeal.)
In the event of the security ordered as aforesaid not being furnished onor before the due dates, I would direct that the application of the 1st and2nd respondents for execution of the decree under appeal be granted uponthe condition that they hypothecate with the Secretary of the DistrictCourt of Kandy a sum of Rs. 20,000 as security in terms of section 763of the Civil Procedure Code.
I would make no order as to the costs of this, application. Or ofthe inquiry in the Court below.
Weeeasoobxva J.—I agree.