1945 Present :Soertsz A.C.J. and Canekeratne J.

EDWARD, Appellant, and DE SILVA, Respondent.

48-D. C. (Inty.) Matara, 15,119

Execution-Appeal filed by judgment-debtor-Subsequent application by decree-holder for execution of decree-Notice to judgment-debtor-Condition precedent-Civil Procedure Code, s. 763.

In an application for execution of decree after an appeal has been filed by the judgment-debtor it is the duty of the judgment-creditor to make the judgment-debtor a party respondent. The failure to comply with this requirement of section 763 of the Civil Procedure Code would result in a failure of jurisdiction or power of the court to act and would render anything done or any order made thereafter devoid of legal consequence.

APPEAL from an order of the District Judge of Matara.

H. V. Perera, K.C. (with him Vernon Wijetunge), for the defendant, appellant.

N. E. Weerasooria, K.C. (with him H. W. Jayewardene), for the plaintiff, respondent.

Cur. adv. vult.

August 21, 1945. SOERTSZ A.C.J.-

The respondent to this appeal obtained judgment against the appellant for a certain sum of money. The appellant lodged an appeal on September 7, 1943. Thereafter, the respondent applied for and obtained a writ of execution returnable on March 18, 1944. He did not make the appellant a party-respondent to that application. On September 16, 1943, the appellant's proctor moved to have the writ recalled on the ground that the application for it had been made in contravention of the requirement of section 763 of the Civil Procedure Code in that, although his client had taken an appeal at the time the writ was applied for, he had not been made a respondent to the application. This motion was fixed for inquiry on September 29, 1943, but on that date a settlement was reached, the respondent undertaking to give security in the amount of the Fiscal's valuation of such property as came to be seized on the writ, before proceeding further with its execution. However, on October 12, 1943, the respondent's proctor informed the Court that " his client was not tendering security " and, thereupon, the Court made this order:

Recall writ unexecuted. Forward appeal in due course." On the same day, the appellant's proctor brought to the notice of the Court that the Fiscal had already seized property on the writ that had issued on September 9, 1943, and he asked that the Fiscal be directed to release that property from seizure. This was allowed and the Fiscal was directed accordingly. Four months later, namely, on February 28, 1944, the respondent's proctor filed a fresh application for writ and asked that writ be issued, on the respondent tendering the necessary security

The Judge made order " Call on Bench ". On the following day, February 29, 1944, the case was so called, and the following order was made

" I allow application for writ on security based on the Fiscal's valuation of the property seized."

This application and the order upon it were made ex parte. The appellant had not been made respondent or given notice and he was not present before the Court. But, he appears to have heard of what had happened, for two days later, on March 2, 1944, his proctor moved that the writ be recalled unexecuted. This motion was fixed for inquiry on March 9, 1944, and on that day, the Court heard both parties and made order on the following day refusing to recall the writ. Hence this appeal.

The question now is whether the order made on February 29 and March 10, 1944, are well founded. The answer to that question must depend on the correct interpretation of Chapter 49 and, particularly on the correct interpretation of section 763 for, in this instance, the application for execution was made by the judgment-creditor and was made after an appeal had been filed. Section 763 enacts that-

" In the case of an application being made by the judgment-creditor for execution of a decree which is appeale