Carthelis Appuhamy V. Siriwardena

1951 Present: Dias S.P.J. and Gunasekara J.

CARTHELIS APPUHAMY, Petitioner, and SIRIWARDENA,
Respondent

Application for conditional leave to appeal to the Privy Council in
S. C. 100-D. C. (Inty.) Colombo, 10,277

Privy Council-Appeal from Supreme Court decree-Execution of such decree pending the appeal-Appeals (Privy Council) Ordinance (Cap. 85), Schedule, Rules 7 and 8-Applicability to decree declaring a right or status-Civil Procedure Code, s. 217.

In a testamentary action a contest arose between A and B as to whether a will was genuine or a forgery. Pending the final decision of the case, A was appointed administrator pendente lite. Subsequently, the District Court and, on appeal, the Supreme Court pronounced the will to be genuine and declared that B, the executor, was entitled to have the will admitted to probate. Thereupon, A appealed to the Privy Council. Pending the appeal to the Privy Council, B filed papers in the Supreme Court praying that A be removed from the office of administrator pendente lite and that B be granted probate or, in the alternative, be appointed administrator pendente lite. B sought to support his application under Rules 7 and 8 of the Schedule to the Appeals (Privy Council) Ordinance.

Held, that Rules 7 and 8 of the Schedule to the Appeals (Privy Council) Ordinance have no application to a case where the decree, without affording any substantial relief or remedy, declares a right or status. Such a decree falls under head G of section 217 of the Civil Procedure Code and no procedure is provided for its execution.

Held further, that Rule 7 applies only where the decree under appeal " requires the appellant to pay money or perform a duty ".

APPLICATION for conditional leave to appeal to the Privy Council.

E. B. Wikramanayake, K.C., with J. W. Subasinghe, for the respondent appellant.

H. W. Tambiah, for the petitioner respondent.

July 30, 1951. DIAS S.P.J.-

Of consent the application for leave to appeal to the Privy Council is allowed.

This is a testamentary action in which a contest arose as to whether a will was genuine or a forgery. The learned District Judge pronounced it to be genuine and in appeal this Court affirmed that finding. The respondent appellant is now appealing to the Privy Council.

It appears that pending the final decision of this case the respondent appellant was appointed administrator pendente lite. The petitioner respondent has filed papers in this Court asking for a declaration that the respondent appellant has ceased to be an administrator pendente lite, or in the alternative that this Court should remove him from the

said office and the petitioner respondent be granted probate, or in the alternative be appointed administrator pendente lite. It is also prayed that the respondent appellant be ordered to hand over the movable and immovable properties of the estate to the petitioner respondent. It is to be noted, however, that neither the law nor the authority under which this large relief is claimed from the Supreme Court has been set out in the motion paper.

Mr. H. W. Tambiah for the respondent petitioner has endeavoured to support this application under Rules 7 and 8 of the Privy Council Appeal Rules (Legislative Enactments, Volume 2, page 423) which read:-

"7. Where the judgment appealed from requires the appellant to pay money or perform a duty, the Court shall have power, when granting leave to appeal, to direct that the said judgment shall be carried into execution if the person in whose favour it was given shall, before the execution thereof, enter into good and sufficient security, to the satisfaction of the Court, for the due performance of such order as His Majesty in Council shall think fit to make thereon.

8. Provided, nevertheless, that if the appellant shall establish to the satisfaction of the Court that real and substantial justice requires that, pending such app

Click Here to Read the rest of this document