Waharaka Sobitha Unnanse V. Amunugama Piyaratana Unnanse

1953 Present: Gratiaen J. and Weerasooriya J.

WAHARAKA SOBITHA UNNANSE et al, Appellants,
and AMUNUGAMA PIYARATANA UNNANSE et al,
Respondents

S. C. 329--Application for revision in D. C. Kandy, 2,154L
 

Appeal-Stay of execution pending appeal-Quantum of security that should be furnished by judgment debtor-Civil Procedure Code, s. 761.

Where application is made under section 761 of the Civil Procedure Code for stay of execution of a decree pending an appeal, the security ordered to be furnished by the judgment-debtor should not be unduly excessive. The amount of security should be such as would reasonably safeguard the interests of the judgment-Creditor in the event of the judgment appealed from being eventually affirmed in appeal.

APPLICATION to revise an order of the District Court, Kandy.

N. E. Weerasooria, Q .C., with W. D. Gunasekera, for the 1st and 2nd defendants petitioners.

E. B. Wikramanayake, Q .C., with H. W. Jayewardene, for the plaintiffs-respondents.

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 entered judgment in favour of the 1st and 2nd respondents against the petitioners and the 3rd, 4th and 5th respondents, declaring the property in dispute (consisting of houses and lands situated partly within the Municipality of Kandy) to be comprised in a charitable trust of which the 1st and 2nd respondents were entitled to receive the income and profits. The decree also directed the judgment debtors to be ejected from the property and to pay to the 1st and 2nd respondents damages at the rate of Rs. 2,000 per annum from the year 1945 until the property is restored to them.

The property was valued by the 1st and 2nd respondents in their plaint at Rs. 30,000, and has admittedly been continuously in the possession of the judgment debtors since the year 1932.

On 6th July 1953, the petitioners filed an appeal to this Court, which is still pending, against the judgment and decree passed against them and the 3rd, 4th and 5th respondents. In the meantime they had filed an application on 29th June- i.e., on the date on which judgment was pronounced against them-under section 761 of the Civil Procedure Code for a stay of execution of the decree (which had not yet been formally drawn up and signed under section 188) pending the determination of their proposed appeal. A few hours later, the decree having been duly passed, the 1st and 2nd respondents initiated execution proceedings against the judgment debtors.

On 7th July, 1953, after the petition of appeal had been filed, the learned District Judge proceeded to inquire into both applications under Chapter 59 of the Code-that is to say, the application of the judgment debtors for stay of execution pending the hearing of the appeal, and the counter-application of the judgment creditors for execution notwithstanding the pendency of the appeal.

With regard to the application of the judgment debtors, the Court granted 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 of immovable property, and (6) in a sum of Rs. 15,000 in cash. He further directed that, in default of due compliance by the judgment debtors with these conditions, the execution of the decree should proceed unconditionally.

The petitioners complain that the terms imposed on them in regard to their application for stay of execution are unduly oppressive and that/as the security ordered bears " no relation to the facts of the case ", the decision of the learned Judge is tantamount to a summary refusal of then application.

The provisions of proviso (c) to section 761 make it clear that the amount of security which a Judge may in his discretion fix as a condition of a stay of execution

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