111-NLR-NLR-V-53-CARTHELIS-Appuhamy-Petitioner-and-SIRIWARDENA-Respondent.pdf
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DIAS S.P.J.—Carthelis Appuhamy o. Siritoardena
1951Present: Dias S.P.J. and Gunasekara J.CARTHELIS APPUHAMY, Petitioner, and STREW ARDEN A,
Respondent
Application for conditional leave to appeal to the Privy Council inS. C. 100—D. C. (Inty.) Colombo, 10,277
Privy Council—Appeal from Supreme Court decree—Execution of cuch decree pendingthe appeal—Appeals (Privy Council) Ordinance (Cap. 85), Schedule, Rules7 and 8—Applicability to decree declaring a right or status—Civil ProcedureCode, s. 217.
In a testamentary action a contest arose between A and B as to whether awill was genuine or a forgery. Pending the final decision of the case, A wasappointed administrator pendente lite. Subsequently, the District Court and,on appeal, the Supreme Court pronounced the will to he genuine and de-clared that B, the executor, was entitled to have the will admitted to probate.Thereupon, A appealed to the Privy Council. Pending the appeal to thePrivy Council, B filed papers in the Supreme Court praying that A be removedfrom the office of administrator pendente Ute and that B be granted probateor, in the alternative, be appointed administrator pendente lite. B soughtto support his application under Buies 7 and 8 of the Schedule to the Appeals(Privy Council) Ordinance.
Held, that EuleB 7 and 8 of the Schedule to the Appeals (Privy Council)Ordinance have no application to a case where the decree, without affordingany substantial relief or remedy, declares a right or status. Such a decreefalls under head Gr of section 217 of the Civil Procedure Code and noprocedure is provided for its execution.
Held further, that Buie 7 applies only' where the decree under appealrequires the appellant to pay money or perform a duty ".
APPLICATION for conditional leave to appeal to the Privy Council.
E. B. Wihramanayalce, K.C., with J. W. Subasinghe, for the respondentappellant.
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 Councilis allowed.
This is a testamentary action in which a contest arose as to whethera will was genuine or a forgery. . The learned District Judge pronouncedit to be genuine and in appeal this Court affirmed that finding. The respon-dent appellant is now appealing to the Privy Council.
It appears that pending the final decision of this case the respondentappellant was appointed administrator pendente lite. The petitionerrespondent has filed papers in this Court asking for a declaration that therespondent appellant has ceased to be an administrator pendentelite, or in the alternative that this Court should remove him from the
DIAS S.P.J.—Carthctis Appuhamy e. Siriwardena
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said office and the petitioner respondent be granted probate, or in thealternative be appointed administrator pendente lite. It is also prayedthat the respondent appellant be ordered to hand over the movableand immovable properties of the estate to the petitioner respondent.It is to be noted, however, that neither the law nor the authority underwhich this large relief is claimed from the Supreme Court has been setout in the motion paper.
Mr. H. W. Tambiah for the respondent petitioner ha*s endeavouredto support this application under Buies 7 and 8 of the Privy CouncilAppeal Buies (Legislative Enactments, Volume 2, page 423) whichread: —
“ 7. Where the judgment appealed from requires the appellantto pay money or perform a duty, the Court shall have power, whengranting leave to appeal, to direct that the said judgment shall becarried into execution if the person in whose favour it was givenshall, before the execution thereof, enter into good and sufficientsecurity, to the satisfaction of the Court, for the due performanceof such order as His Majesty in Council shall think fit to make thereon.
8. Provided, nevertheless, that if the appellant shall establishto the satisfaction of the Court that real and substantial justice requiresthat, pending such appeal, execution should be stayed, the Courtmay order the execution of such judgment to be stayed if theappellant shall give sufficient security for the due performance ofsuch order as His Majesty in Council shall think fit to make thereon.” I
I am of opinion tb"t these rules have no application to a case of thiskind.
What is the decree which has been appealed against? It is a decreedeclaring that a certain document is a genuine last will. How is thatdecree to be executed? The kinds of decrees which a Court of originaljurisdiction can lawfully enter in this Island are enumerated in s. 217of the Civil Procedure Code. A decree which declares a will to be genuinedoes not fall within any of the heads A to F in s. 217. Such a decreefalls under head G of s. 217 which provides:“ Or it (the Court) may,
without affording any substantive relief or remedy, declare a right orstatus ”. While procedural rules have been laid down for the executionof decrees under heads A to F, there is no procedure provided for theexecution of decrees falling under head G. The language of s. 217 alsomakes it clear “ that in the case of decrees which declare a right orstatus the Court may without affording any substantive relief or remedy,make that declaration ”. A decree declaring a status would be one,for example, where A seeks a declaration from the Court that she is thelawfully married wife of B. If the Court gives A such a decree there isno means by which that decree can be executed. A decree declaringa right would be one as in this case—where the Court, has declared thatthe applicant for probate has the right to have the testator’s willadmitted to probate, and so far as I can see there is no method by whichthat decree can be executed except by admitting the will to probate.Until the Privy Council finally decides this case, it cannot be said that
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Aramugam o. Arumugam
the executor's right to probate has been established. Therefore,under the Civil Procedure Code, this decree is incapable of execution.Furthermore, the language of Buie 7 of the Privy Council Appeal Buiesmakes it clear that that rule only applies where the decree under appeal“ requires the appellant to pay money or perform a dutyTherefore
there may be decrees which are capable of execution in the lower Courtbut incapable of execution under Buie 7. In the present case the decreeof the District Court does not require the payment of money or theperformance of a duty.
The application is dismissed with cos.ts.
Gunasekara J.—I agree.
Application, allowed.
Cro88-application dismissed-