053-SLLR-SLLR-2005-V-1-KANTHILATHA-AND-ANOTHER-vs.-WIMALARATNE-AND-OTHERS.pdf
KANTHILATHA AND ANOTHERVSWIMALARATNE AND OTHERSCOURT OF APPEALAMARATUNGA, J ANDBALAPATABENDI J„
C.A. PHC NO. 7/2002H.C. COLOMBO REV. 178/01
M.C. GANGODAWILA 16523JULY 15 AND AUGUST 01, 2002
Constitution, Articles, 154 P(3)(b) and 154P(6) – Civil Procedure Code, section736 – Court of Appeal (Procedure for Appeals from High Courts) Rules 1988 -Appeal from order or judgment to higher court – Does the filing of an appealipso facto stay the operation of the order of the lower court ? – Primay CourtsProcedure Act, section 66(1).
CAKanthilatha and Another vs Wimalaratne and Others411
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Held:The effect of a right of appeal is the limitation of the jurisdiction of onecourt and the extension of the jurisdiction of another; on that right beingexercised the case should be maintained in status quo till the appellatecourt has dealt with it and given its decision.
The filing of an appeal in the exercise of a right of appeal conferred bylaw, ipso facto operates to suspend the jurisdiction of the original court toexecute the order appealed against.
APPLICATION in revision from the order of the Magistrate's Court of •
Gangodawila issuing writ.
Cases referred to :
Abeywardena vs. Ajith de Silva – (1998) 1 Sri LR 134 (DB)
Edward vs. de Silva – 46 NLR 342 at 343
Attorney General vs. Sillem 11 English Reports 1208
Viraj Premasinghe for petitioners.
D. W. Abeykoon, P.C., with Upali Ponnamperuma for respondents.
Cur.adv. vult
August 15, 2002
GAMINIAMARATUNGA, J.The petitioners in this revision application were the 2nd and 5threspondents in M. C. Gangodawila case No. 16523, a proceeding initiatedunder section 66(1 )(a) of the Primary Courts Procedure Act, No. 44 of1979 in respect of a dispute affecting land. The respondents to this revisionapplication were the other rival contending party respondents to the saidland dispute which related to a roadway.
It was the contention of the present respondents that the 1 st petitionerwho was the 2nd party respondent to the Primary Court proceedingsdemolished a part of the rear boundary wall of her premises and constructeda gate to enable her tenant, the 2nd petitioner (who was the 5th respondent
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to the Primary Court proceedings) to gain access to a roadway whichexclusively belonged to the respondents. It was contended by therespondents that this newly created access interfered with their peacefuluse of the roadway exclusively belonging to them. The learned Magistrate,having considered the material placed before him by the parties held thatthe 1 st petitioner (the 2nd party respondent in the proceedings before thePrimary Court) or her agents have no right to use the said roadway. Hehas further directed that the opening she has made by demolishing a partof her boundary wall should be closed by re-building the boundary wall asit existed before.
The present petitioners then filed a revision application in the High Courtof Colombo against the order of the learned Magistrate. After hearing therevision application the learned High Court Judge by his order dated' 4.06.2001 has held that the present respondents have a right to use theroadway which was the subject matter of the dispute and that the presentpetitioners should not obstruct or interfere with the exercise of their right.He has also affirmed the order of the learned Magistrate directing thepresent petitioner to re-erect the boundary wall in the same way as itexisted before. Accordingly the learned High Court Judge has dismissedthe revision application with costs.
The petitioners in their application to this Court (paragraph 11) havestated that against the order of the High Court Judge they have preferredan appeal to this Court. In proof thereof they have filed document P4, acertified copy of the journal entry dated 21.06.2001 contained in the HighCourt record No. HCRA 178/2000. It is to be mentioned here that P4 is nota copy of the petition of appeal filed by the petitioners against the order ofthe High Court Judge.
The petitioners’ petition to this Court describes the events that tookplace after the High Court dismissed the revision application. Therespondents to the present application, who were the successful party inthe Magistrate’s Court and in the High Court have applied to the Magistrate’sCourt to execute the order of that Court dated 2000.10.18 as approved bythe High Court by its order dated 4.6.2001. When the present petitionerswere noticed to appear in the Magistrate’s Court in connection withexecution proceedings, they have informed Court that they have filed an
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appeal to this Court against the order of the High Court and accordinglyhave moved to have execution stayed till the appeal is disposed of by thisCourt. The learned Magistrate has thereafter directed the petitioners tosupport their application to stay execution until the appeal is decided. Thejournal entry in the Magistrate's Court record relating to 18.1.2002, whichhas been produced marked P3D by the petitioners states that a letter forappeal has been produced.
This entry does not indicate what was the letter produced before theMagistrate. On that date the learned Magistrate has made the followingorder. 'The 2nd party has not taken any step in the Court of Appeal againstthe order sought to be executed. Execute the order of the High Courtpending the receipt of an order from the Court of Appeal."
The petitioners now seek an order staying further proceedings in MCGangodawila case No. 16523 until the final determination of their appealto this Court. They have already obtained a stay order staying the operationof the learned Magistrate’s order dated 18.1.2002 until the finaldetermination of this application.
The order of the High Court has been made in the exercise of therevisionary jurisdiction vested in it by Article 154 P(3)(b) of the Constitution.In terms of Article 154P(6) a party dissatisfied by a final order or a judgmentof the High Court in the exercise of its revisionary jurisdiction under Article154 P(3)(b) has, subject to the provisions of the Constitution and any law,a right of appeal to the Court of Appeal against such order. See Abeywardanavs. Ajith de Silva11’. The petition of appeal, filed by the petitioners in theHigh Court on 20.6.2001, now forms a part of the record of this Court inCA(PHC)163/2001, the Court of Appeal number assigned to their appeal.
When a party, in the exercise of a right of appeal conferred by lawprefers an appeal against any order or a judgment to a higher court, theresulting position with regard to the execution of the order appealed againsthas been explained by Soertsz ACJ, in Edward vs. De Silva(:) at 343 in thefollowing words. “The ordinary rule is that once an appeal is taken from thejudgment or decree of an inferior Court, the jurisdiction of that Court inrespect of that case is suspended except, of course, in regard to mattersto be done and directions to be given for the perfecting of the appeal and
CAKanthilatha and Another vs Wimalaratne and Others415
(Ameratunga, J)
its transmission to the Court of Appeal. As Lord Westbury, Lord Chancellor(1864) observed in Attorney General vs. Sillem<3> "the effect of a right ofappeal is the limitation of the jurisdiction of one Court and the extension ofthe jurisdiction of another’. It follows as a corollary that on that right beingexercised the case should be maintained in status quo till the appellatecourt has dealt with it and given its decision."
There may be statutory exceptions to this general rule, such as section763 of the Civil Procedure Code, which permits execution pending appeal.However, even in such situations there are safeguards provided to protectthe interests of the appellant. In the absence of any exception, the generalrule, as explained by Soertsz ACJ, applies. This general rule is daily giveneffect to in the Magistrate’s Court and High Courts when appeals arepreferred against orders and judgments of such courts given in the exerciseof their original jurisdiction. However, a substantial number of revisionapplications filed in this Court in the recent past indicate that the questionof staying execution pending appeal has very often come up especially inrelation to orders made in proceedings, initiated in terms of section 66(1)of the Primary Courts Procedure Act, No. 44 of 1979. In terms of theprovisions of that Act, there is no right of appeal against an order made inproceedings commenced under section 66(1). However, more often thannot, the party against whom an order is made in such proceedings files arevision application in the High Court invoking its revisionary jurisdictionunder Article 154 P (3)(b) of the Constitution.
As stated above, a party dissatisfied with the order made by the HighCourt in the revision application has a right of appeal to this Court againstsuch order. In terms of the Court of Appeal (Procedure for Appeals fromthe High Courts) Rules of 1988, such appeal has to be filed in the HighCourt within 14 days from the order appealed against. Once an appeal isfiled, the High Court has to forward its record together with the petition ofappeal to the Court of Appeal. In the meantime, as has happened in thiscase, the party who is successful in the High Court may make an applicationto the original Court, supported by a certified copy of the order of the HighCourt, to execute the order of the High Court. Several revision applicationwhich have come up before this Court indicate that in such situations,some original court judges have taken the view that in the absence of adirection from the Court of Appeal directing the stay of execution pending
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appeal, the order appealed against is executable. With respect, this is anerroneous view. It appears that the learned Magistrate in this case hasfallen into the same error when order was made to execute the order of theHigh Court pending the receipt of an order from the Court of Appeal. Thereis no provision or a necessity for issuing a direction to stay execution. Thefiling of an appeal ipso facto operates to suspend the jurisdiction of theoriginal court to execute the order appealed against.
There is a practical difficulty faced by the original courts when anapplication to execute the order of the High Court is made. The appeal isfiled in the High Court and it is then transmitted to the Court of Appeal.There is no provision to officially intimate to the original court that anappeal has been filed. In such situations it is the duty of the party resistingexecution on the basis of the pending appeal to furnish proof by way of acertified copy of the petition of appeal to satisfy the original court that anappeal has been made. When such proof is tendered.the original courtshould stay its hand until the appeal is finally disposed of.
In this case the petitioners have filed an appeal against the order of theHigh Court and now the appeal is before this Court. In view of what hasbeen stated in this judgment there is no necessity to issue an order stayingall proceedings in MC Gangodawila. That court has no jurisdiction to executethe order of the High Court until the petitioners’ appeal is heard and disposedof by this Court. However, since the petitioners have prayed for it, I formallyset aside the order of the learned Magistrate dated 18.1.2002 a nd issuean order staying all proceedings in M.C. Gangodawila case No. 16523until the final determination of appeal No. CA(PHC) 163/2001. In thecircumstances of this case I make no order for costs.
BALAPATABENDI, J. -1 agree,Though, there is no necessity to issue an order staying proceedings, orderof Magistrate formally set aside; stay order issued.