SEYLAN BANK PLC V LEBBE MOHOMED RAZIK

SEYLAN BANK PLC V LEBBE MOHOMED RAZIK

SUPREME COURT
SHIRANEE TILAKAWARDANE,J.
RATHNAYAKE,J.,AND
IMAM,J.
S.C APPEAL NO.38 A/2008
SC HC CA LA N0.45/2007
'NCP/HCCA/APR/ LA/07/2007
DC(ANURADHAPURA) CASE NO.21064/ M
JUNE,2ND 2009

Debt Recovery (Special Provisions) Act No.2 of 1990 as amended by Act N0.9 of 1994 - Section 6(3), Section 13, Section 15, Section 16, Section 17 - Is a decree nisi made absolute, a find judgment within the meaning of Section 754(1) of the Civil Procedure Code? - Section13(1) when a decree nisi is made absolute it is deemed to be writ duly issued on the fiscal - Civil Procedure Code - Section 225 (3).

The petitioner instituted action against the respondent under the provisions of the Debt Recovery (Special Provisions) Act in order to recover certain sums of money. The District Court entered decree nisi against the respondent after a summary trial. The respondent sought leave to show cause against the decree nisi. The learned District Judge made order absolute as the respondent failed to disclose a primafacie sustainable defence. The respondent preferred a leave to appeal application to the High Court. The petitioner raised a preliminary objection in the High Court in that the respondent is not entitled in law to institute an application for leave to appeal, because under the Debt Recovery Act, an order making the decree nisi absolute was a final order and not an interlocutory order. The High Court rejected the preliminary objection raised by the petitioner and held that leave to appeal was the only procedure to assail such order.

The only substantive issue before the Supreme Court was whether a leave to appeal application lies against a decree nisi which was made

absolute under Section 6 (3) of the Debt Recovery (Special Provisions) Act No. 2 of 1990 as amended by Act No. 9 of 1994.

Held:

(1) A decree nisi made absolute under Section 6(3) of the Debt Recovery (Special Provisions) Act No. 2 of 1990 as amended by Act No. 9 of 1994, is a final judgment in terms of Section 754 (5) of the Civil Procedure Code and hence a leave to appeal application does not lie against that judgment, in terms of Section 754 (2) of the Civil Procedure Code.

(2) According to the provisions of the Debt Recovery Act when a decree nisi is made absolute under Section 6(3) of the Act, Section 13 becomes operative immediately.

(3) Section 13 (1) of the Debt Recovery Act provides that where a decree nisi is made absolute, it is deemed to be a writ of execution duly issued on the fiscal in terms of Section 225 (3) of the Civil Procedure Code and notwithstanding anything to the contrary in other written law, the execution of the sale should not be stayed.

Cases Referred to:

1. Indra v. People's Bank (2002) Sri L.R. 25.

2. Somathilaka Bandara v. People's Bank (2005) 1 Sri.L.R.10.

APPEAL from the Judgment of the High Court of the North Central Province Holden in Anuradhapura.

Palitha Kumamsinghe, P.C. with I Idroos for the Piaintiff - Respondent- Petitioner.

Kamran Aziz for the Defendant - Petitioner - Respondent.

Cur.adv.vult.

June 02nd ,2009
SHIRANEE TILAKAWARDANE, J.

    This is an application for leave to appeal from the order, dated 15th November 2007, of the Provincial High Court Judge of the North Western Province-sitting in Anuradhapura-exercising' appellate and revisionary jurisdiction).

    The relevant facts material to this case are aa follows: The Plaintiff-Respo dent-Petitioner (hereinafter referred to as the "Petitioner') insitituted action against the Respondent under the provisions of the Debt Recovery (Special Provision) Act, No. 2 of 1990, as amended, by Act No. 9 of 1994 (hereinafter referred to as the "Debt Recovery Act"), in order to recover the following sums, namely,

(1) a sum of Rs. 5,716,475/64 together with interest on Rs. 4,303,864171 from 1st of July 2004 at the rate of 20% per annum, on the first cause of action plea

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