AFEELA UMMA
vs
SARA UMMA

COURT OF APPEAL
BASNAYAKE.J
CHITRASIRI. J
CA 46/2002
HC CHILAW 22821/RE
FEBRUARY 13, 2009

Civil Procedure Code - Section 763- Section 765 (2) - Writ pending appeal - Substantial loss alleged - If writ is stayed, Conditions to be imposed? - Deposit of security - Mandatory? - Writ pending appeal application - Can it be dismissed?

The defendant - petitioners application to stay execution of the writ pending appeal on the ground of "substantial loss" was dismissed by the District Court.

(2) When the judgment debtor satisfied Court that there exists substantial loss if he is evicted from the premises in question, then the Court should stay execution of writ upon such terms and conditions as it may deem fit - Section 763(2)

It was contended that such an application cannot be dismissed but Court should have either allowed the execution or stayed the same until a determination is made in the appeal finally. It was further contended that Court has not considered the 'substantial loss' that would be caused to the judgment debtor.

Held:

(1) When an application for writ pending appeal has been properly made Court cannot and should not dismiss the same. In such a situation Court shall make an order either allowing or staying the execution.

Per Chitrasiri. J.

"I have carefully examined the reasoning of the District Judge and the evidence that had been led in this connection, relevant evidence, I believe is sufficient to prove substantial loss".

APPLICATION for leave to appeal from an order of the District Court of Chilaw.

Cases referred to:-

1. Don Piyasena us. Mayawathie Jayasuriya 1986 1 Sri LR 6

2. Grindlays Bank Ltd. us. Mackinnon Mackenzie & Co. Ceylon Ltd 1990 1 Sri LR 19

3. Amarange us. Seelawathie Weerakoon 1990 2 Sri LR 332 3.

Ranjan Suwandaratne with Vipule Maninnage for plaintiff-petitioner petitioner

S. N. Tirimanne for defendant-respondent-respondent.

Cur.adu. vult

March 18, 2009

CHITRASIRI, J.

The Plaintiff Judgment Creditors- Petitioners- Petitioners (hereinafter referred to as Petitioners) filed action against the Defendant-Judgment Debtors- Respondents- Respondents (hereinafter referred to as Respondents) for declaration of title to the land referred to in the schedule to the plaint filed in the District Court of Chilaw. The learned District Judge entered judgment in favour of the Petitioners and made order to evict the Respondents from the land in dispute. Petitioners thereafter made an application to the District Court in terms of the provisions contained in Chapter LIX of the Civil Procedure Code for writ of execution against the Respondents since an appeal had been preferred against the Judgment. The learned District Judge having considered the evidence placed before him dismissed the aforesaid application of the Petitioners on 30th January 2002.

The Petitioners sought leave of this Court to appeal against the said order dated 30th January 2002 and also prayed that it be set aside. Learned Counsel for the Petitioners submitted that the learned District Judge has erred in law in determining the issue of "substantial loss" referred to in Section 763(2) (a) of the Civil Procedure Code. On the other hand, contention of the learned Counsel for the Respondents was that the learned District Judge having properly considered the circumstances had come to the correct decision envisaged in the said section of the Civil Procedure Code.

The learned Counsel for the Petitioners has also taken up the position that an application of this nature cannot be dismissed by the District Judge as seen in this instance but the Judge should have either allowed the execution or stayed the same until a determination is made in the appeal finally. Therefore, the application of the petitioners is to obtain an order from this Court to have the writ executed pending appeal reversing the order of the learned District Judge on the basis:

*  that he has erred in l