1995 2 SLR 109

• Jurisdiction: Sri Lanka
• Court: Court of Appeal (Sri Lanka)
• Citation: 1995 2 SLR 109
• Date: 16 May 1995
• Case Number: 1995SLR2V109
• Type of Document: Case report

109

GUNAWARDANA
v.
DR. DE ZOYSA AND ANOTHER

COURT OF APPEAL

SILVA, J. PICA WITH

DR. RANARAJA, J.
C. A.599/92
D.C. MOUNT LAVINIA CASE NO. 593/ZL
MARCH 06, 20, APRIL 03, 1995.

Declaration of Title - Execution of a Proprietory Decree - Civil Procedure Code S. 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 2nd respondent, the estranged wife of the 1st respondent. At the ensuing S. 325 inquiry, the Court upheld the claim of the 2nd respondent that she is in possession of the premises in suit on her own account as tenant. The petitioner moved in Revision against the said Order.

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Held:

(1) There are precedents which circumscribe the exercise of Revisionary power in the context of resistance to the execution of proprietory Decrees under Section 325-329.

(2) Petitioner must show that he would suffer a denial of justice or irremediable harm.

(3) An inquiry held pursuant to a resistance to the execution of a proprietory Decree is a Summary Inquiry; if the person resisting, establishes a right to be in possession on his own account or on account of a person other than the judgment Debtor, that does not itself preclude the Judgment Creditor proving otherwise in a regular action.

(4) The petitioner has an alternative remedy and this Court cannot stultify the proceedings in a future regular action.

Cases referred to:

1. Rashid Ali v. Mohamed Ali -1981 -1 SLR 262.
2. Gunaratne v. De Silva -58 N.L.R. 542.
3. 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 in action against the 1st Respondent for declaration of title to premises No. 34 Dickman's Road, Colombo 5, ejectment and damages. The 1st respondent consented to judgment when the fiscal sought to execute the decree, he was resisted: y the 2nd respondent who is the estranged wife of the .1st respondent. The, petitioner complained to Court under section 325 of the Civil Procedure Code. After inquiry, Court upheld the claim of the 2nd respondent 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 in Revision is from that order.

Learned President's Counsel for the 2nd respondent; took-a preliminary objection that Section 329 of the Code, denies the petitioner the right to appeal from an order made under Sections 326 to 328 of the Code, but does not debar him from instituting an action to establish his right or title to the property as against the 2nd respondent, and as he has an alternative remedy, he is precluded from invoking the Revisionary powers of this court. He submitted further, that this court will act in Revision only if the petitioner can show "exceptional circumstances", which he has failed to do, and therefore 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 application made, call for and examine the record of. any case, whether already tried or pending trial, in any Court, Tribunal, or other Institution for the purpose of satisfying itself as to the legality or propriety of any judgment or order passed therein, or as to the regularity of the proceedings of such Court, Tribunal, or other Institution, and may upon revision of the case brought before it pass any judgment or make any order thereon, as the interests of justice may require."

It is to be noted that the words, "of its own motion or on application made" have been added and the words "thereon as the interests of justice may require" have replaced the words "which it might have made had the case been brought before it in due course of appeal instead of by way of revision", in the amended section. The Court of Appeal has the power under this Section to act on its own motion/or upon the application of any party. It is also no longer necessary that the relevant order or judgment of the inferior Court, Tribunal or Institution should be appealable. However, there are certain limits within which this Court may...