Vethamanickam V. Davoodbhoy

1962 Present: T. S Fernando, J.

V. H. D. VETHAMANICKAM, Petitioner, and C. A. DAVOODBHOY,
Respondent

S. C. 548-Application in Revision in C. E. Colombo, 77,712

Appeal-Tenancy action in respect of rent-controlled premises-Decree entered for ejectment of tenant-Condition that writ shall not issue for some time-Application for stay of execution of writ pending appeal-Computation of time limit- Application for execution of decree pending appeal-Discretion of Court to refuse such application-Civil Procedure Code, ss. 761, 763.

A tenant who seeks, pending appeal, a stay of execution of decree entered against him for ejectment must, under section 761 of the Civil Procedure Code, make his application before the expiry of the time allowed for appealing against the decree, notwithstanding that the decree contains a direction that writ of ejectment shall not issue till a specified date has expired. The circumstance that the decree has directed that writ of ejectment shall not issue for a certain period cannot have the effect of extending the time limited by section 761.

When a judgment-creditor makes application under section 763 of the Civil Procedure Code for execution of decree pending appeal, the existence of a valid application for a stay of execution is not the only circumstance that can be taken into account by the Court as militating against the issue of writ of execution.

Where a tenant of rent-controlled premises prefers an appeal to the Supreme Court against a decree for ejectment entered against him, it is competent for the Court to refuse the landlord's application for execution of decree having regard to the difficulty of restoring the tenant to occupation of the premises in the event of the appeal being successful.

APPLICATION to revise an order of the Court of Requests, Colombo.

Siva Rajaratnam, for the defendant-petitioner.

W. D. Gunasekera, for the plaintiff-respondent.

Cur. adv. vult.

March 12, 1962. T. S. FERNANDO, J.-

The plaintiff in. C. R. Colombo Case No. 77,712 successfully sued the defendant his tenant, for ejectment of the latter from premises No. 281/1, Galle Road, Wellawatte. Judgment in his favour was delivered by the learned Commissioner on 29th June 1961, and within the appealable period the defendant preferred an appeal to the Supreme Court against the judgment which had ordered his ejectment. By that same judgment the Commissioner had directed that writ of ejectment shall not issue till 30th September 1961.

On 29th September 1961 the defendant applied to the Court of Requests for a stay of execution of the decree, and notice of this application was directed to be served on the plaintiff and thereafter inquiry was to take place on 14th November 1961. Meanwhile the plaintiff himself applied for execution of decree pending appeal, but failed to make the defendant a party respondent to his application. Both applications appear to have been taken up for inquiry on 14th November 1961 in the presence of counsel and proctor for both parties and, after hearing argument, the learned Commissioner reserved his order for 21st November 1961 on which day he allowed the application of the plaintiff for execution, of . decree. The defendant thereupon on the same day, with notice to the plaintiff, applied for a vacation of that order and an interim order staying execution of decree pending the disposal of his latest application. The learned Commissioner by his order made on 4th December 1961 dismissed the defendant's application of 21st November and refused a stay of execution.

The application to this Court is designed really to canvass the correctness of the order of the Commissioner made on 21st November 1961 allowing the application for execution of decree. Counsel for the

defendant-petitioner first contended that the plaintiff's application for execution of decree should not have been entertained because of his failure to comp

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