022-SLLR-SLLR-1995-2-GUNAWARDANA-V.-DR-DE-ZOYSA-AND-ANOTHER.pdf
CA
Abeysinghe v. Abeysekera (Ranaraja, J.)
109
GUNAWARDANA
v.
DR. DE ZOYSA AND ANOTHER
COURT OF APPEALSILVA, J. P/CA WITHDR. RANARAJA, J.
A.599/92
C. MOUNT LAVINIA CASE NO. 593/ZLMARCH 06, 20, APRIL 03, 1995.
Declaration of Title – Execution of a Proprietory Decree – Civil Procedure CodeS. 325 – An Appeal from Order under Sec. 326-329 Civil Procedure Code -Revision – Exceptional circumstances.
Petitioner instituted action against the 1st respondent for a declaration of Title.When the Fiscal sought to execute the Decree, he was resisted by the 2ndrespondent, the estranged wife of the 1st respondent. At the ensuing S. 325inquiry, the Court upheld the claim of the 2nd respondent that she is inpossession of the premises in suit on her own account as tenant. The petitionermoved in Revision against the said Order.
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Held:
There are precedents which circumscribe the exercise of Revisionary powerin the context of resistance to the execution of proprietory Decrees under Section325-329.
Petitioner must show that he would suffer a denial of justice or irremediableharm.
An inquiry held pursuant to a resistence to the execution of a proprietoryDecree is a Summary Inquiry; if the person resisting, establishes a right to be inpossession on his own account or on account of a person other than thejudgment Debtor, that does not itself preclude the Judgment Creditor provingotherwise in a regular action.
The petitioner has an alternative remedy and this Court cannot stultify theproceedings in a future regular action.
Cases referred to:
Rashid Ali v. MohamedAli-1981 – 1 SLR 262.
Gunaratne v. De Silva – 58 N.L.R. 542.
Zahir v. Perera – 73 N.L.R. 424.
AN APPLICATION in Revision against the Order of the District Court of Colombo
Maureen Seneviratne P.C. with R. Gooneratne for Petitioner.
P. A. D. Samarasekera P.C. with K. Gunawardena for 2nd Respondent.
Cur. adv. vult.
May 16,1995.
RANARAJA, J.
The Petitioner instituted action against the 1st Respondent fordeclaration of title to premises No. 34 Dickman’s Road, Colombo 5,ejectment and damages. The 1st respondent consented to judgmentwhen the fiscal sought to execute the decree, he was resisted by the2nd respondent who is the estranged wife of the 1st respondent. Thepetitioner complained to Court under section 325 of the CivilProcedure Code. After inquiry, Court upheld the claim of the 2ndrespondent that she was in possession of the premises in suit on her
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own account as tenant and dismissed the petition. This application inRevision is from that order.
Learned President’s Counsel for the 2nd respondent took apreliminary objection that Section 329 of the Code denies thepetitioner the right to appeal from an order made under Sections 326to 328 of the Code, but does not debar him from instituting an actionto establish his right or title to the property as against the 2ndrespondent, and as he has an alternative remedy, he is precludedfrom invoking the Revisionary powers of this court. He submittedfurther, that this court will act in Revision only if the petitioner canshow “exceptional circumstances", which he has failed to do, andtherefore his application should be dismissed in limine.
Section 753 as amended by Act, No. 79 of 1988 provides:
The Court of Appeal may, of its own motion or on applicationmade, call for and examine the record of any case, whetheralready tried or pending trial, in any Court, Tribunal, or otherInstitution for the purpose of satisfying itself as to the legality orpropriety of any judgment or order passed therein, or as to theregularity of the proceedings of such Court, Tribunal, or otherInstitution, and may upon revision of the case brought before itpass any judgment or make any order thereon, as the interestsof justice may require.”
It is to be noted that the words, “of its own motion or on applicationmade” have been added and the words “thereon as the interests ofjustice may require" have replaced the words “which it might havemade had the case been brought before it in due course of appealinstead of by way of revision”, in the amended section. The Court ofAppeal has the power under this Section to act on its own motion/orupon the application of any party. It is also no longer necessary thatthe relevant order or judgment of the inferior Court, Tribunal orInstitution should be appealable. However, there are certain limitswithin which this Court may exercise its Revisionary powers. Forinstance, the judgment or order sought to be revised should be made
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during proceedings to which the Civil Procedure Code is applicable.There are also precedents of the Supreme Court as well as this court,which circumscribe the exercise of Revisionary powers in the contextof resistance, to the execution of proprietary decrees under Sections325 to 329 of the Code. As Wanasundera, J. observed in Rashid Ali vMohamed AH 0).
“When however the law does not give a right of appeal andmakes the order final, the Court of Appeal may neverthelessexercise its powers of revision, but it should do so only inexceptional circumstances. Ordinarily the Court will not interfereby way of review, particularly when the law has expressly givenan aggrieved party an alternate remedy such as the right to filea separate action, except when non-interference will cause adenial of justice or irremediable harm … It would be sufficient inthe present context also to state that the fact a judge’s ordermay be merely wrong should not be a sufficient ground for thepowers of revision … In an application for revision of this nature,the threshold is much higher than that required for an appellantexercising a mere right of appeal.”
A similar view was expressed by H. N. G. Fernando, J. InGunaratne v. De Silva(2) on a consideration of the earlier section 327and 327A of the Code:
“I would hold also that the provision in Section 327A that theorder is final means that it is not appealable. A perfectlyreasonable alternative is provided to the claimant in that he canbring within one month an action to establish his right topossession and if successful in that action, be restored topossession. Just as what appears to be a bona fide claim"keeps out” the judgment-creditor until the claim is regularlyinvestigated (S. 327), so also what appears to be a frivolousand vexatious claim is insufficient to entitle the claimant tocontinue in possession and he is compelled to seek a remedyby regular action. In each case the powers of this Court inappeal cannot be invoked until the regular action is tried.”
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This dictum was followed with approval by De Kretser, J. in Zahir v.Pererat3) – who added:
“Mutatis mutandis these appear to be cogent reasons why thisCourt should not allow its powers of revision to be invoked inrespect of such an order except in most exceptionalcircumstances."
In the light of the above judgments the petitioner had to satisfy thisCourt that he would suffer a denial of justice or irremediable harm, orthat they were the most exceptional circumstances, which called forthe exercise of its Revisionary powers.
Learned President’s Counsel for the petitioner submitted that sincethe Additional District Judge had come to a finding that the 2ndrespondent was the tenant of the premises, it is not possible tocontest this decision except in this Court. This submission is made onthe premise that a finding at an inquiry under section 327 of the Codeis binding on the parties, but as explained very clearly by H. N. G.Fernando, J. this is not a correct view of the law. An inquiry heldpursuant to a resistance by any party to the execution of aproprietory decree is a summary inquiry, which has to be completedwithin 60 days of the publication of the notice under Section 325(2),for the purpose of terminating the execution proceedings by decidingwhether the resistance was occasioned by the judgment-debtor, orby some person at his instigation, or by a person claiming in goodfaith, to be in possession on his own account or on account of aperson other than the judgment-debtor. If the person resistingestablishes such a right, for instance, as in the present action quatenant, such a finding by itself does not preclude the judgment-creditor proving otherwise in a regular action. The petitioner thus hasan alternative remedy available. Where such alternative relief isavailable this Court will not exercise its Revisionary powers.
Learned President’s Counsel then submitted that there areexceptional circumstances which call for the exercise of therevisionary powers in that the order of the Additional District Judge iswrong. As observed by Wanasundera, J., in Rashid Ali, {supra) the
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judge's order being merely wrong is an insufficient ground for thiscourt to exercise its revisionary powers.
It is to be noted that the petitioner has not even pleadedexceptional circumstances in his petition. The Additional DistrictJudge has come to a finding that the landlord of the premises hadissued receipts for rents paid in the name of the 2nd respondent. Thepetitioner has been unable to give a satisfactory explanation as tohow this has occurred. The Judge has held that the 2nd respondenthad thus established a prima facie right to remain in occupation ofthe premises in suit on her own account. The petitioner has the rightto institute a regular action and vindicate his right to possession ofthe premises by proving that if the 2nd respondent was in fact atenant during the period for which she holds receipts, she hadceased to be a tenant at a later date and she has no right to continuein occupation of the premises. This Court cannot stultify theproceedings in a future regular action in the District Court, by eithersetting aside or affirming the decision of the Additional DistrictJudge, made after a summary inquiry in execution proceedings. AsH. N. G. Fernando, J., stated in Gunaratne v. De Silva, (supra) theproper stage to invoke the appellate or revisionary jurisdiction of thisCourt is at the conclusion of such regular action. Therefore, thepetitioner will not suffer a denial of justice or irremediable harm.
For the reasons given the application is dismissed but withoutcosts.
S. N. SILVA, J. -1 agree.
Application dismissed.