055-SLLR-SLLR-2003-V-2-THE-PEOPLES-BANK-v.-CAMILLUS-PERERA.pdf
358
Sri Lanka Law Reports
(2003] 2 Sri L.R
THE PEOPLE’S BANKv
CAMILLUS PERERA
COURT OF APPEALAMARATUNGA, J.
A.L.A. 22/2001 (LG)
C. BALANGODA 902/LJULY 3 AND 14, 2003
Civil Procedure Code, section 754 – Finance Act, No. 11 of 1963, section 72(2)- Ceylon State Mortgage Bank (Amendment) Law, No. 16 of 1973, sections72(7) and 72(8) – Acquisition by Bank – Delivery of possession – Summaryprocedure – Refusal – No appeal lies even with leave.
The land was vested in the petitioner Bank by virtue of an order made by theMinister of Finance under section 72(2) of the Finance Act. Section 72(7)empowers the authorized officer of the Bank to make an application to theDistrict Court to obtain an order for delivery of possession of such land. Thisapplication has to be made by way of summary procedure. The respondentrefused to hand over possession. The application filed under section 72(7)under summary procedure, was refused by the trial court on the ground that it
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was not just to remove the. respondent under summary procedure.
The petitioner Bank sought leave to appeal from the said order.
Held:
Jurisdiction conferred by section 72(7) is a speedy jurisdiction; thestatute which conferred this jurisdiction in the District Court has not cre-ated or granted a right of appeal against an order made in the exerciseof such special jurisdiction.
When there is no right to appeal there cannot-be a right to make anapplication for leave to appeal.
APPLICATION for leave to appeal from the Order of the District Court of
Balangoda.
Cases referred to:
Martin v Wijewardena – (1989) 2 Sri LR 409
Bakmeewewa, Authorized Officer of the People's Bank v KonarageRaji- (1989) 1 Sri LR 321
Manohara de Silva for petitioner
Chandana Prematilake for respondent
Cur.adv.vult
30 October, 2003
GAMINI AMARATUNGA, J.
This appeal comes up with leave to appeal granted by this 01Court. The facts relevant to this appeal are as follows. The landcalled Edimon Estate, described in the schedule to the applicationfiled by the petitioner Bank (hereinafter called the Bank) in theDistrict Court of Balangoda was vested in the Bank by virtue of anOrder made by the Minister of Finance under section 72 (2) of theFinance Act, No. 11 of 1963 as amended. The said order of theMinister has been published in the Gazette (Extraordinary) No.1052/9 dated 4/11/1998. When a person in possession or occupa-tion of such vested property refuses to allow the Authorized Officer 10of the Bank to take possession of such property, section 72 (7) ofthe Finance Act, as amended by Finance and Ceylon State
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Mortgage Bank (Amendment) Law No. 16 of 1973, empowers theAuthorized Officer of the Bank to make an application to the DistrictCourt having jurisdiction over the place where such land is situatedto obtain an order for delivery of possession of such land.
Section 72 (8) of the Finance Act enacts that the applicationreferred to in section 72 (7) shall be made and disposed of by wayof summary procedure in accordance with the provisions ofChapter XXIV of the Civil Procedure Code. When the respondentwho was in possession of the said Edimon Estate refused to han-dover possession of that land of the Authorized Officer of the Bank,he filed an application under section 72 (7) under SummaryProcedure in the District Court of Balangoda. The learned DistrictJudge refused and dismissed that application on the ground that itwas not just to remove the respondent from the land under thesummary procedure. As the law provided that the applicationshould be made by way of summary procedure, the order of thelearned Judge was palpably wrong. The Bank filed this leave toappeal application against that order.
This Court on 06/06/2002 has granted leave to appeal on thefollowing question. “Whether the impugned order is final order orwhether this appeal in fact is misconceived.” Parties have filed theirwritten submissions on this question. The learned counsel for therespondent has submitted that this leave to appeal application wasmisconceived in law. The learned counsel for the respondent hassubmitted that the jurisdiction conferred by the said section 72 (7)is a special jurisdiction; the statute which conferred this specialjurisdiction in the District Court has not created or granted a right ofappeal against the order made in the exercise of such special juris-diction, a right of appeal must be specifically conferred by statuteand that when there is no right of appeal conferred by statute, thereis no right to make an application for leave to appeal, which if leaveis granted, becomes an interlocutory appeal.
It has been held by the Supreme Court in the case of Martinv Wijewardana (1> a right of appeal must be expressly created andgranted by statute and such right cannot be implied. In this instancethe Finance Act has not granted a right of appeal in respect of anorder made upon an application made to the District Court undersection 72(2) of the Finance Act. The right to appeal and the rightto make an application for leave to appeal conferred by section
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754 of the Civil Procedure Code are confined to judgements andorders made by original Courts in any civil action or proceeding. Ithas no application to proceedings taken under a special jurisdictionconferred on an original Court.
The identical question I have to decide in this appeal, namelywhether there is a right of appeal in respect of an order made bythe District Court upon an application made under section 72(7) ofthe Finance Act has been considered and decided by the SupremeCourt. The learned Counsel for the respondent has cited the case 60of Bakmeewewa, Authorized Officer of the People’s Bank vKonarage Raja 2 where this question was decided. In that case theSupreme Court held that there was no right of appeal in respect ofan order made by a District Court in an application made under sec-tion 72(7) of the Finance Act. In the course of his judgment G.P.S.de Silva, J. (as he then was) has stated that the jurisdiction exer-cised by the District Court under section 72(7) and 72(8) of theFinance Act is a special jurisdiction given to a Court of execution inrespect of an extra judicial order and the right of appeal available inrespect of judgments or orders of the District Court made jn the 70exercise of its ordinary, general civil jurisdiction has no applicationto the special, jurisdiction conferred on the District Court by section72(7) and (8) of the Finance Act. When there is no right of appeal,there cannot be a right to make an application for leave to appeal.Accordingly the contention of the learned counsel for the respon-dent that this purported leave to appeal application was miscon-ceived in law is entitled to succeed.
As pointed out by G.P.S. de Silva, J. in that case, the fact thatthere is no right of appeal does not mean that an aggrieved party isleft without a remedy, for revision is available. The Bank should sohave therefore sought its appropriate remedy. My finding that thereis no right to make an application for leave to appeal against theimpugned order is sufficient to dispose of this appeal and accord-ingly the necessity to consider the other question namely whetherthe impugned order is final order, does not arise. Accordingly theappeal is dismissed with costs in a sum of Rs. 5000/-.
Appeal dismissed.