execution of decree while panding Flashcards
sections
761
763 (1)
763 (2)
761
- No application for execution of an
appealable decree shall be instituted or
entertained until after the expiry of the time
allowed for appealing therefrom:
Provided, however, that where an appeal
is preferred against such a decree, the
judgment-creditor may forthwith apply for
execution of such decree under the
provisions of section 763.
no 762
763 (1)
763*. (1) In the case of an application
being made by the judgment-creditor for
execution of a decree which is appealed
against, the judgment-debtor shall be made
respondent.
if, on any such application, an order is
made for the execution of a decree against
which an appeal is pending, the court which
passed the decree shall, on sufficient cause
being shown by the appellant, require
security to be given for the restitution of any
property which may be taken in execution
of the decree, or for the payment of the
value of such property, and for the due
performance of the decree or order of the
Court of Appeal.
And when an order has been passed for
the sale of immovable property in execution
of a decree for money, and an appeal is
pending against such decree, the sale shall,
on the application of the judgment-debtor,
be stayed until the appeal is disposed of, on
such terms as to giving security or otherwise
as the court which passed the decree thinks
fit
763 (2)
(2) The Court may order execution to
be stayed upon such terms and conditions as
it may deem fit, where—
(а) the judgment-debtor satisfies the
court that substantial loss may
result to the judgment-debtor unless
an order for stay of execution is
made, and
(б) security is given by the judgmentdebtor for the due performance of
such decree or order as may
ultimately be binding upon him.
question of law
cases
- brooke bond private limited v gunesekara
- appuhamy v fonseka
- thisera v fernando
- lalitha siriwardana v piyasena munasinghe
- sithi husaira v samaranayake
- Amarange v Seelawathie Weerakoon
- perera v goonewardene
- green lace bank limited v macaanum company
Brooke Bond Private Limited v Gunesekara
for the purpose of Section 761 “appealable time” is a period of 14 days specified for giving notice of appeal
Appuhamy v Fonseka
the burden to satisfy the court that substantial loss would be caused is on the debtor.
Green lace bank limited v Macaanun Company
if the judgment debtor desires stay of execution pending appeal he should establish substantial loss.
Mere inconvenience and annoyance are not enough.
The damage must be substantial and the defendant must prove it.
Thisera v Fernando
there is a duty cast on the judgment debtor to take every possible step to minimize his loss.
He cannot hold back on his inaction and claim substantial loss would be caused to him.
Lalitha Siriwardene v Piyasena Munasinghe
the petitioner had 16 years to take the necessary steps to minimize the substantial loss and the extension of stay order should not be granted.
Sithi Husaira v Samaranayake
facts like old age, ill health and accompanying infirmities are very relevant and due weight should be given in the exercise of discretion vested in the court under section 23 of the Judicature Act
Amarange v Seelawathie Weerakoon
substantial loss is not necessarily monetary loss.
The expression must have a relative meaning and must vary with the facts of each case.
Where the petitioner had been tenant for 16 years, made attempts to get alternative accommodation but failed, had four children out of them two were school going children depending on him and had only two more years to retire from his teaching profession, substantial loss was inferred.
Perera v goonewardene
mere assertions of the judgment debtor’s opinion that serious loss would result, unsupported by avertments of fact in regard to the nature of the business, turnover, profits is irrelevant.
While generally goodwill does attach to a business, there is no presumption that every business has a goodwill and certainly not as to the extent of the goodwill.
628 to 634 – interpleader actions
