006-SLLR-SLLR-1997-V-1-SIDEEK-v.-FUARD.pdf
SIDEEK
V.
FUARD
SUPREME COURT.
G. P. S. DE SILVA, C.J.,
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. APPEAL NO. 66/94 WITHS.C. APPEAL NO. 21/94
A. APPLICATION NO. 205/93
C. MT. LAVINIA NO. 2909/REJANUARY 18. 1995.
Execution of Decree pending appeal – Power of the District Court to stayexecution ~ Judicature Act, Section 23 – Discretion of Court – Substantialquestion of Law as a ground for stay of execution.
The decree sought to be executed was entered after an ex parte trial on theground of defendant's default. After the case was fixed for trial there was a fire inthe Record Room which destroyed the record. On the day fixed for the trial, theDefendant was absent and the record was reconstructed with copies ofpleadings furnished by the Plaintiff following which the ex-parfe trial was held, theDefendant's application to set aside the ex-parte decree was refused. Pendingthe Defendant's appeal from that order, the court allowed the Plaintiff's applicationfor execution.
Held:
The court, in the exercise of its discretion under Section 23 of the Judicature Act.may stay execution of a decree on the ground of a substantial question of law.Such questions arise namely, whether after the record was destroyed it couldreasonably be said that the trial date stood: and whether the reconstruction of therecord without notice to the Defendant was lawful.
APPEAL from the judgment of the Court of Appeal.
L. de Silva. P.C. with S. Mahenthiran for Plaintiff-Appellant in SC 66/94 andDefendent-Respondent in SC 21/94.
A. K. Premadasa, P.C. with C. E. de Silva for Defendant-Respondents in SC 21/94and Petitioner in SC 21/94.
Cur. adv. vult.
February 13. 1995.
P. S. DE SILVA, C. J.
This was a tenancy action. The plaintiff instituted theseproceedings on 27.7.1989 seeking, Inter alia, the ejectment of thedefendant from the premises in suit. The defendant in his answerdated 25.6.90 sought, inter alia, the dismissal of the action.
The trial was fixed for 23.4.91. However, on 15.3.91 the recordroom of the District Court caught fire and the record of this case{along with several records in other cases) was destroyed. On
the plaintiff was present and was represented by counsel.The defendant was absent and there was no representation on hisbehalf. Counsel for the plaintiff tendered to court copies of the plaint,answer and replication and moved that the case be fixed for ex partetrial. Trial was held exparte on 9.5.91; decree was entered in favour ofthe plaintiff and was served on the defendant. The defendant'sapplication to set aside the ex parte decree was refused; thedefendant has preferred an appeal against that order of the DistrictCourt and the appeal is now pending in the Court of Appeal.
The plaintiff made an application for execution of decree pendingappeal. After inquiry, the District Judge allowed the application.Thereupon the defendant moved the Court of Appeal by way ofrevision to set aside the order of the District Court allowing theapplication for execution of decree pending appeal. The Court ofAppeal, acting in revision, set aside the order. The plaintiff has nowpreferred an appeal to this court against the judgment of the Court ofAppeal.
The District Court has the power to stay execution of a decreepending appeal "when it shall see fit to make an order to that effect"(section 23 of the Judicature Act as amended by Act No. 37 of 1979).It is a discretion that is vested in the Court; a discretion which, ofcourse, must be exercised judicially. It was the contention of Mr. A. K.Premadasa for the defendant-respondent that there was a substantialquestion of law to be considered at the hearing of the appeal,namely, whether the reconstitution of the record on 23.4.91 withoutnotice to the defendant was valid and whether the subsequentproceedings were in accordance with law. On the other hand,
Mr. H. L. de Silva for the plaintiff-appellant argued that there wasnothing wrong in reconstituting the record, for the reason that thecase had not proceeded beyond the stage of pleadings and thedefendant did not contest the authenticity of the pleadings, Mr. deSilva stressed that the reconstitution of the record did not involvedisputed questions. The copies of the plaint, answer and replicationwere readily available.
There is little doubt that the court was faced with an exceptionalsituation. The fire in the record room had destroyed the record. In avery unusual situation such as this, a crucial question that arises iswhether it could reasonably be said that the trial date (23.4.91)stands. An equally fundamental question is whether the reconstitutionof the record on 23.4.91 without notice to the defendant was lawful.The Court of Appeal has rightly stressed the fact that theproceedings had on 23.4.91 were without “the principal record of theaction". (Section 92 of the Civil Procedure Code).
Mr. H. L. de Silva submitted that substantial question of law aloneis not a ground upon which a court could stay execution of decreepending appeal. I do not agree. The question of law that arises maybe of such a nature (as in the instant case) that the court in theexercise of its discretion may deem it fit and proper to make orderstaying execution of decree. (Section 23 of the Judicature Act asamended by act No. 37 of 1979). The Court of Appeal rightly heldthat the District Court was in error when it allowed execution ofdecree pending appeal.
For these reasons the judgment of the Court of Appeal is affirmedand the appeal is dismissed with costs fixed at Rs. 500/-.
Before I conclude I wish to state that of consent S.C. appeal 21/94and this appeal were consolidated; parties agreed to abide by asingle judgment.
KULATUNGA, J. -1 agree.
RAMANATHAN, J. -1 agree.
Appeal dismissed.