when an appeal regarding a Section 66 proceeding execution does not automatically stop

 

NANDAWATHIE AND ANOTHER V. MAHINDASENA

 

2009 2 SLR 18

 

COURT OF APPEAL

RANJIT SILVA. J

SALAM, J.

CA(PHC) 242/2006

HC AVISSAWELLA (REV) 67/2004

MC AVISSAWELLA 66148 (66)

JANUARY 15TH, 2009

MAY 4TH, 2009

 

Primary Court Ordinance Sections 68, 69, 74 (2), 78 - Relief granted - Moved High Court in revision - Application allowed - Appeal lodged - Can the writ be executed while the appeal is pending? - Is there an automatic stay of proceedings? Civil Procedure Code Sections 754, 757 (2), 761, 630 - Amended by Act No. 38 of 1998 - Judicature Act - Section 23 - High Court of the Provinces (SpI Prov) Act No.19 of 1990 - Constitution 154 P 13th amendment- Supreme Court Rules 1940 - Industrial Disputes Amendment Act No. 32 of 1990 - Maintenance Act No. 34 of 1990 - Section 14 - Criminal Procedure Code No.15 of 1979 Section 323 - Bail Act - Section 19- Constitution Article 138 - Examined - Compared. - Obiter dicta.

 

Held

 

(1) When an order of a Primary Court Judge is challenged by way of revision in the High Court the High Court can examine only the legality of that order and not the corrections of that order.

 

(2) On appeal to the Court of Appeal the Court of Appeal should not under the guise of the appeal attempt to re-hear or re-evaluate the evidence led and decide on the facts which are entirely and exclusively falling within the domain of the jurisdiction of the Primary Court.

 

(3) Orders given by the Primary Court should be executed or implemented expeditiously as possible without undue delay unless there is a stay order currently in operation there should be no

 

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automatic stay of proceedings for whatever reason otherwise that would negate and frustrate the very purpose for which that provisions were enacted.

 

Per Ranjith Silva J.

 

"I am of the opinion that this particular right of appeal in the circumstances should not be taken as an appeal in the true sense but in fact an application to examine the correctness, legality or the propriety of the order made by the High Court Judge in the exercise of revisionary powers. The Court of Appeal should not under the guise of an appeal attempt to rehear or re-evaluate the evidence led in the main case."

 

Per Ranjith Silva. J.

 

"General laws, concepts and general principles whether they have been there from time immemorial should not be applied mechanically to new situations which were never in contemplation when those laws, principles or concepts came into being, extraordinary situations demand extraordinary remedies. It is the duty of Court of law to give effect to the laws to meet new situations, by brushing aside technicalities, the so called rules and concepts which cannot be reconciled should not be allowed to stand in the way of the administration of justice causing hindrance impeding the very relief the legislature wanted to enact".

 

Per Ranjith Silva, J.

 

"The decision in R. A. Kusum Kanthilatha and others v. Indrani  Wimalaratne(1) and two others placing reliance on the dictum in Edward v. Silva(2) as authority for the proposition that once an appeal is taken against a judgment of a final order pronounced by a High Court in the exercise of its revisionary jurisdiction ipso facto stays the execution of the judgment or order is clearly erroneous. Lodging of an appeal does ipso facto stay execution. Something more has to be done by the aggrieved party and something more has to be shown, to stay the execution of the judgment or order - it is not automatic".

 

Cases referred to:-

 

1. R.A. Kusum Kathilatha and others v. lndrani Wimalaratne and two others - 2005 1 Sri LR411 (not followed)

 

2. Edward v. de Silva - 46 NLR343 (distinguished)

 

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3. AG v. Silem -11 Eng. Reports at 1208.

 

4. Sokkalal ram Sart v. Nadar- 34 NLR 89

 

5. Charlotte Perera v. Thambiah 1983 - 1 Sri LR at 352

 

6. Brooke Bond (Ceylon) Ltd., v. Gunasekera - 1990 1 LR 71

 

7. Nayar v. Thaseek:Ameen - 20003 Sri LR at 103

 

8. Kulatunga v. Perera - 2002 - 1 Sri LR at 357

 

APPLICATION in revision from an order of the High Court of Avissawella.

 

W Dayaratne for petitioners

 

Rohan Sahabandu for respondent.

 

Cur.adv. vult

 

November 11th, 2009

 

RANJITH SILVA, J.

 

    The Petitioners Respondents Petitioners, who shall hereafter be referred to as the Petitioners, filed an information by affidavit regarding a dispute over a right of way between the Petitioners and the Respondent, in the Primary Court of Avissawella on 25th March 2004 under and in terms of Section 66(1)(b)of the Primary Court Procedure Act No.44 of 1979.

 

    The Learned Magistrate (learned Primary Court Judge) by his order dated 1st of July 2004 granted the roadway as prayed for by the Petitioners in their petition and thereafter the said order was executed by the fiscal and accordingly the use and enjoyment of the said roadway was granted over to the 1st Petitioner.

 

    Being dissatisfied with the said order of the Learned Primary Court Judge, dated 01.07.2004, the Respondent moved the High Court of Avissawella in revision.

 

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    The Learned High Court Judge on 16.03.2006 allowed the application for revision filed by the Respondent and set aside the order of the learned Primary Court Judge, dated 1st July 2004.

 

    Aggrieved by the said order of learned High Court Judge dated 16.03.2006 the Petitioners, have preferred an appeal to this Court on 29th March 2006, which is pending before another division of this Court.

 

    Thereafter the Respondent filed a motion in the High Court and made an application to obtain an order to close the road which was opened in accordance with the order made by the learned Primary Court Judge and the said application of the Respondent was allowed by the learned High Court Judge on 29.03.2006, the same day the petition of appeal against the order of the learned High Court Judge ,was lodged and accepted. The petition of appeal was accepted by the registrar of the High Court at 3.15 p.m. on 29.03.2006. The Petitioners lodged the appeal 13 days after the final order in the application for revision, was made by the High Court. Thus it appears that the appeal was lodged within the appealable period namely within 14 days of the date of the final order.

 

    On 30th ofMay2006 on a motion filed by the Respondent, learned High Court Judge affirmed both the orders dated 16th March 2006 and 29th March 2006. Consequently the learned Primary Court Judge ordered the execution of the final order made by the learned High Court Judge restoring the Respondent to possession of the land over which the said right of way is claimed by the petitioners

 

    Being aggrieved by the said orders of the learned High Court Judge dated 29th of March 2006 and 30th May2006 the

 

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Petitioners have filed this application in this Court seeking to revise/set-aside the orders of the learned High Court Judge dated 29th of March 2006 and 30th May 2006 and the order for execution of the writ made by the learned Magistrate while the appeal is pending and to restore the Petitioner to possession of the land over which the said right of way is claimed by the petitioner's.

 

    It was virtually the main and only contention of the Counsel for the petitioners that the learned High Court Judge (the learned Primary Court Judge) had no jurisdiction to execute the orders after an appeal was taken to the Court of Appeal in that there aren't any provisions to execute a writ while the appeal is pending in the Court of Appeal as  such power is given only under Section 761 and 763 of Civil Procedure Code which have no effect, relevance or bearing at all to the instant case. In support of his contention the Counsel for the petitioners cited the judgment delivered by His Lordship Justice Gamini  Amaratunga, in R.A. Kusum Kanthiltha and Others v. Indrani Wimalaratne and Two others"

 

    In the said case His LordshipJustice GaminiAmaratunga, citing Edward v. DeSilva(2) at 343, held as follows;

 

    "Asstated above, a party dissatisfied with an order made by the High Court in a revision application has a right of appeal to this Court against such order. In terms of the Court of Appeal (procedure for appeals from the High Courts) rules of 1988, such an appeal has to be filed in the High Court within 14 days from the order appealed against. Once an appeal is filed, the High Court has to forward its record together with the petition of appeal to the Court of Appeal. In the meantime, as has happened in this case, the party who is successful in the High Court may make an application to

 

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the original Court supported by a certified copy of the order of the High Court, to execute the order of the High Court. Several revision applications which have come before this Court indicate that in such situations, some of the original Court Judges have taken the view that in the absence of a direction from the Court of Appeal directing the stay of execution pending appeal, the order appealed against is an executable order. With respect, this is an erroneous view. It appears that the learned Magistrate in this case has fallen into the same error when the order was made to execute the order of the High Court pending the receipt of an order from the Court of Appeal. There is no provision or necessity for issuing a direction to stay execution. The filling of an appeal ipso facto operate to suspend the jurisdiction of the original Court to execute the order appealed against.

 

    There is a practical difficulty faced by the original Courts when an application to execute the order of the High Court is made. The appeal is filed in the High Court and it is then transmitted to the Court of Appeal. There is no provision to officially intimate the original Court that an appeal has been filed, In such situations it is the duty of the party resisting execution on the basis of the pending appeal to furnish proof by way of a certified copy of the petition of appeal to satisfy the original Court that an appeal has been made. When such proof is tendered, the original Court should stay its hand until the appeal is finally disposed of."

 

    Counsel for the Respondent argued to the contrary and submitted that the judgment of Justice Gamini Amaratunga in Kanthiltha's case (supra) is wrongly decided. (Decided per incuriam) for the reason that their Lordships in that case have not considered the statutes and the relevant authorities referred to in that judgment and also for the reason that their

 

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Lordships have followed the decision in Edward v. De Silva (supra) to arrive at the conclusion it arrived at, since the Judges  who decided the case decided that case, relying on the Judgment in AG v. Sillem(3)at 1208. It is quite significant to note that AG v. Sillem (supra) is a criminal case, to be precise a case dealing with breach of statutory provisions.

 

    AG v. Sillem (Supra) relied on by their Lordships in arriving at their decision in Edward v. De Silva (supra) is a criminal case. In Criminal matters, the normal practice and the rule is that once an appeal is taken from a Judgment of an inferior Court the jurisdiction of the inferior Court with regard to the execution of the judgment and sentence, in respect of that case, is suspended.

 

     In Edward v. De Silva (Supra) the ratio decidendi was that in an application for execution of decree after an appeal has been filed by the judgment debtor it is the duty of the Judgment creditor to make the Judgment debtor a party respondent. The failure to comply with this requirement stipulated in Section 763 of the Civil Procedure Code would result in a failure of jurisdiction of the Court to act and would render anything done or any order made thereafter devoid of legal consequences. The observations made by their Lordships in the said case, regarding the suspension of the jurisdiction of a lower Court after the lodging of an appeal was an obiter dictum as that was never the issue that had to be decided in the case.

 

     Proceedings under Section 66 of the Primary Court Procedure Act, are generally considered as quasi criminal in nature, yet matters with regard to execution of orders of a Primary Court Judge are very much civil in nature. The particular section dealing with casus omissus secures this position beyond any doubt.

 

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Section 78 of the Primary Court Procedure Act is as follows;

 

If any matter should arise for which no provision is made in this Act, the provisions in the Code of Criminal Procedure Act governing a like matter where the case or proceeding is a criminal prosecution or proceeding and the provisions of the Civil Procedure Code governing a like matter where the case is a civil action or proceeding shall with such suitable adaptations as the justice of the case may require be adopted and applied."

 

    Counsel for the Respondent contended that if a stay of the order of the High Court is required it is for the aggrieved party to move the Court of Appeal to get a stay of the order of the High Court. The mere filing of an appeal does not ipso facto stay the execution of the judgment or order. He contended further that in civil maters, the decided cases, the rules of the Supreme Court and the statutes clearly lay down the principle that the execution of the decree is the rule and the stay of execution is the exception and for a stay order to be obtained specific provision must be provided for in the Act.

 

    The provisions of chapter LV 111 of the Civil Procedure Code dealing with appeals do not contain any provisions for stay of execution of the judgment. Sections 761 and 763 in chapter L1V are the only provisions that deal with stay of execution of orders, judgments or decrees. But it has to be borne in mind that none of these provisions are applicable to the instant case as part V11 of the Primary Court Procedure Act does not provide for an appeal against an order. Not only does it not provide for an appeal but also specifically debars an appeal.

 

Section 74 (2t of the Primary Court Procedure Act

 

"An appeal shall not lie against any determination or order under this Act. "

 

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    By an amendment to the Civil Procedure Code provisions were made for stay orders in Leave to Appeal matters. Section 757(2) as amended by ActNo.38of 1998 has provided for stay orders, interim injunctions and other relief, unlike section 754 of the Civil Procedure Code dealing with appeals.

 

    Section 757(2)

 

    "Upon an application for leave to appeal being filed, in the registry of the Court of Appeal the Registrar shall number such application and shall fort hunih: sent notice of such application by registered post, to each of the respondents named therein, together with copies of the petition, affidavit and annexure, if any. The notice shall state that the respondent shall be heard in opposition to the application on a date to be specified in such notice. An application for leave to appeal may include a prayer for a stay order, interim injunction or other relief". (Emphasis added)

 

    By contract the provisions of Section 754 dealing with appeals are silent with regard to stay orders. Even the Supreme Court rules dealing with appeals do not provide for stay of execution. But the Supreme Court rules provide for stay orders in application such as revision application and leave to appeal applications.

 

    The Civil Procedure Code contains specific provisions with regard to the staying of execution of the decree pending appeal. If no application to stay execution is made the judgment creditor is entitled to apply for execution of the decree. Such application cannot be made before the expiry of the time prescribed for tendering the notice of appeal. The stay of execution of decree will not be made unless the judgment debtor can establish that substantial loss will be caused to him if the judgment is executed pending appeal. The Judicature Act too contains specific provisions with regard to stay

 

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of execution of judgment pending appeal. Thus it is seen that under the Civil Procedure Code the rule is to execute the judgment and the exception is to stay the execution pending appeal on proof of substantial loss. In this regard I would like 'to quote the following provisions of the Civil Procedure Code and the Judicature Act.

 

    Section 763(2) of the Civil Procedure Code.

 

    The Court may order execution to be stayed upon such terms and conditions as it may deem fit, where.

 

(a) 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

 

(b) security given by the Judgment debtor for the due performance of such decree or order as may ultimately be binding upon him.

 

    In Sokkalal Ram u. Nadar" it was held that stay of execution pending appeal is granted only where the proceedings would cause irreparable injury to the appellant and where 'the damages suffered by the appellant by execution of decree, would be substantial.

 

Section 23 of the Judicature Act No.2 of 1978.

 

    Any party who shall be dissatisfied with any judgment, decree, or order pronounced by the District Court may (except where such right is expressly disallowed) appeal to the Court of Appeal against any such judgment, decree or order for any error in law or in fact committed by such Court, but no such appeal shall have the effect of staying the execution of such Judgment, decree or order unless the District Judge shall see fit to make an order to that effect, in which case the party

 

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appellant shall enter into a bond, with or without sureties as the District Judge shall consider necessary, to appear when required and abide the Judgment of the Court of Appeal upon the appeal.

 

    In Charlotte Perera us. Thambiabr' at 352 it was held that the mere filing of an appeal does not stay the execution of the decree appealed against. The Court may stay the execution if an application is made for stay of execution on the grounds mentioned in Section 761.

 

    In Brooke Bond (Ceylon) Ltd v. Gunasekaras' it was held in that Section 761 should not be construed in such a way as not to lightly interfere with the decree holders rights to reap the fruits of his victory as expeditiously as possible.

 

    The Counsel for the Respondent in support of his case has cited two cases. In Nayar u. Thaseek Ameen[7] the District Court held with the plaintiff, aggrieved by the judgment, the defendant appealed to the Court of Appeal but the appeal was dismissed by the Court of Appeal. The defendant filed a motion stating that he intended to appeal to the Supreme Court and moved for a stay of execution of the Judgment. The Supreme Court held that the Court of Appeal has no power to stay proceedings and the jurisdiction is with the Supreme Court. In fact in that case leave to appeal to the Supreme Court was granted by the Court of Appeal, yet the Court of Appeal did not have the jurisdiction to grant a stay order.

 

    It is discernible from the said Judgment that once the Court of Appeal or the High Court gives its Judgment the proceedings are not automatically stayed in the High Court. the Court of Appeal or the Supreme Court, as the case may be, should be moved, to obtain a stay order. In the earlier. case referred to above it is the Supreme Court which had the

 

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power to grant a stay order, staying the execution of the order of the Court of Appeal. By the same token and by parity or reasoning it is only the Court of Appeal that can grant a stay order against an order of the High Court and the mere loading of an appeal does not automatically stay the execution of the Judgment or Order of the High Court. This is yet another aspect that their Lordships had failed to consider by an oversight in Kanthilatha's case (supra).

 

    The second case cited by the Counsel for the respondent IS Kulatunga v. Peiris". This case deals with interim restraining orders as distinct from stay orders staying the execution of a judgments or orders. An average interim order should be distinguished from an interim order in the nature of a stay order especially the stay orders that tend to stay the execution of judgments or orders. Their Lordships in the above case held that the Court of Appeal has the inherent power to restrain a party from destroying the subject matter of the action and also to authorize a party to take necessary steps (subject to such terms and conditions as the Court may prescribe) to preserve the subject matter of the action, his Lordship Justice Mark Fernando observed I quote; "However such inherent jurisdiction can be invoked only by way of a proper application supported by an affidavit and giving the opposite party an opportunity of being heard before making an order."

 

    The Supreme Court further held in that case that the tenant had the right to do so in the exercise of his rights under;

 

(a) the tenancy agreement,

 

(b) in the discharge of his duty to mitigate loss and damage which he would otherwise suffer,

 

(c) or in the fulfillment of his mutual obligations,

 

(d) or to avoid criminal liability.

 

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    Therefore I find that the decision in Kalutunga v. Peiris (supra) would not be directly relevant to a decision of this Court in the instant case. But from the decision of that case we can derive some support to augment that the mere lodging of an appeal does not ipso facto stay the execution of the Judgment or the order appealed against. Even to obtain an interim order from the Court of Appeal there ought to be a proper application.

 

    Nowhere in the Civil Procedure Code it is stated that lodging of an appeal will stay the writ of execution of the decree, Something more has to be done by the aggrieved party and something more has to be shown, to stay the execution of the decree. It is not automatic. When an appeal is taken against a final order of a High Court Judge made in the exercise of its revisionary jurisdiction, the Supreme Court Rules do not provide for a stay of execution of that order whereas in application for revision, in application for leave to appeal and also in applications for special leave to appeal, although there is no automatic stay, the Supreme Court rules provide for applications for stay of execution pending such applications but this is not so in appeals. Therefore a party, who wishes to have the execution of the impugned order stayed pending appeal, could file a revision application to obtain a stay of execution of the impugned order.

 

    Prior to the 13th Amendment and the High Court of the Provinces Special Provisions Act No. 19 of 1990 which conferred upon the High Courts the jurisdiction to entertain applications for revision, a person aggrieved by an order made by a Primary Court Judge or a Magistrate had to move  the Court of Appeal in revision. If any person was dissatisfied with the order of the Court of Appeal he had to seek special leave to appeal From the Supreme Court within 42 days. (Vide Rule 42 of the Supreme Court Rules). The

 

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Supreme Court Rules of 1990provides for stay of proceedings. Where special leave is granted, if a party wants a suspension of the Judgment of the Court of Appeal, he has to make an application to the Supreme Court and thus it would be seen that the mere lodging of an application for special leave to appeal to the Supreme Court does not ipso facto stay the order of the Court of Appeal. Generally such stay orders are given exparte by the Supreme Court and such stay orders remain in force for a period of 14 days which fact is indicative of the fact that stay of execution is the exception and execution of the Judgment is the rule. According to rule 43 (3) if an interim stay is granted and if special leave is granted subsequently the Petitioner has to make yet another application to get a stay of the execution of Judgment pending the final determination of the appeal. These matters have not been considered by their Lordships who decided Kanthilaths's case (supra).

 

    Unlike in applications for special leave to appeal to the Supreme Court where the Supreme Court Rules provide for stay orders, (vide 43(3))Article 154 P or the High Court of the Provinces Special Provisions Act, or the Supreme Court Rules do not provide for stay orders in appeals.

 

The modern trend in some of the recently enacted. legislations Industrial Disputes

 

    The Industrial Disputes (amendment) Act No. 32 of 1990 contains provisions dealing with security that has to be deposited in case an appeal is to be taken against an order, by an aggrieved party. The purpose of deposit of security is to ensure satisfaction of the Labour Tribunal order. Thus there is a guarantee of satisfaction of the order of the Labour Tribunal in case the appeal is not successful. In terms of the provisions of the Industrial Disputes Act, the order

 

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of the Labour Tribunal will not be implemented during the pendency of the appeal provided that sufficient funds have been deposited as security to satisfy the order of the Labour Tribunal in case the appeal is unsuccessful.

 

Maintenance Matters

 

Section 14 (1) of the Maintenance Act No. 37 of 1999 is as follows;

 

    Any person who shall be dissatisfied with any order made by the Magistrate under Section 2 or Section 11 may prefer an appeal to the relevant High Court established by Article 154 P of the Constitution in the like manner as if the order was a final order pronounced by a Magistrate's Court in criminal cases or matters, and Section 320 and 330 both, inclusive of Section 357 and 358 of the Code of Criminal Procedure Act No. 15 of 1979 shall mutatis mutandis apply to such appeal.

 

    Provided however, not withstanding anything to the contrary in Section 323 of the Criminal Procedure Code Act No. 15 of 1979 such order under Section 2 shall not be stayed by reason of such appeal, unless the High Court directs otherwise for reasons to be recorded.

 

    It is evident from the above provisions that even under the new Maintenance Act the rule is not to stay the execution of the order unless the High court directs otherwise for reasons to be recorded.

 

    Section 14 (2) states that, any person dissatisfied with an order of the High Court may lodge an appeal to the Supreme Court on a question of law with the leave of the High Court and where such leave is refused, with the special leave of the Supreme Court ,first had and obtained.

 

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    Then the question arises, whether the order of the High Court is ipso facto stayed the High Court grants leave to Appeal to the Supreme Court. To answer this question one must look at rule 42 of the Supreme Court Rules, wherein it is stated that, if the Court of Appeal grants leave the party seeking to stay the execution of the judgment or final order, should obtain such relief from the Supreme Court. In the same way, when the High Court grants leave to appeal to the Supreme Court, the order is not automatically stayed. The party will have to move the Supreme Court to obtain a stay.

 

    According to the old Criminal Procedure Code when a person is convicted in the Magistrate's Court the Magistrate has no discretion but to grant bail on the accused. If the accused was condemned to undergo hard labour he shall be detained in custody without hard labour until the Judgment of the Court of Appeal is made known to the Superintendent of the prison. If an accused is convicted for murder, by the High Court, the sentence of death will not be carried out and the execution of the Judgment will be stayed during the pendency of the appeal. This position of the law was changed/altered by Section 19 and 20 of the Bail Act No. 30 of 1997. Under the current law the Magistrate has the discretion to grant or refuse bail pending appeal. It is significant to note that even after a conviction in the Magistate's Court if the ,sentence is not hard labour the punishment will not be stayed unless the Magistrate decides to grant bail on the accused; it is only hard labour that is automatically stayed. This position is not the same in the High Court as the High Court Judge has the discretion to either release the accused on bail or keep him in custody pending appeal whether the sentence is hard labour or otherwise. But if an accused is sentenced to death the execution is stayed pending appeal.

 

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Criminal cases - Magistrate's Court

 

Section 323 (1) of the Criminal Procedure Code

 

    (When an appeal has been preferred the Court from which the appeal is preferred shall order the awellant if in custody to be released on his entering into a recognizance in such sum with or without a surety or sureties as such Court may direct conditioned to abide the judgment of the Court of Appeal and to pay such costs as may be ordered. (emphasis added)

 

Section 323 (4) of the Criminal Procedure Code

 

    When a person sentenced to a term of rigorous imprisonment has preferred an appeal, but is unable to give the required recognizance or other security he shall be detained in custody without hard labour until the Judgment of the Court of Appeal is made known to the Superintendent of the prison.

 

Section 19 of the Bail Act is as follows;

 

    Where an appeal has been preferred from a conviction in the Magistrate's Court the Court from which the appeal is preferred may having taken into consideration the gravity of the offence and the antecedents of the accused, refuse to release the appellant on bail.

 

Bail Act Section 19(6)

 

    When a person sentenced to a term of rigorous imprison. ment has preferred an appeal, but is unable to give the required recognizance or other security he shall be detained in custody without hard labour until the Judgment of the Court is made known to the Superintendent of the prison.

 

    According to this Section it is only hard labour that is ipso facto stayed.

 

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Criminal cases - High Court

 

Section 333(1' of the Criminal Procedure Code Act No.1S of 1979

 

    Upon the appeal being accepted all further proceedings in such case shall be stayed (not the law anymore) and the said appeal together with the record of the case and eight copies thereof and the notes of evidence taken by the Judge shall be forwarded as speedily as possible to the Court of Appeal.

 

Section 333 (2' Criminal Procedure Code

 

    When an appeal against a conviction is lodged, the High Court may subject to subsection (4) admit the appellant to bail pending the determination of his appeal. An appellant who is not admitted to bail shall pending the determination of the appeal be treated in such manner as may be prescribed by rules made under the Prisons Ordinance.

 

Section 20 (2) of the Bail Act is as follows;

 

    "When an appeal against a conviction by a High Court is preferred, the High Court may subject to subsection (3) release the appellant on bail pending the determination of his appeal. An appellant who is not released on bail shall, pending the determination of the  appeal be treated in such, manner as may   be prescribed by the rules made  under the Prisons Ordinance.

 

       As far as the High Court is concerned the position has now changed. The law that prevailed prior to the Bail Act to the effect that " Upon the appeal being accepted all further proceedings in such case shall be stayed" is not the law any more. The High Court Judge has the discretion to either grant or refuse to grant bail. If bail is refused the appellant will be

 

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treated in such manner as may be prescribed by rules made under the Prisons Ordinance. According to Section 20 (3) of the Bail Act it is only the death sentence that is automatically stayed pending appeal.

 

Section 20(3) of the Bail Act

 

    Where the accused is sentenced to death, execution shall be stayed and he shall be kept on remand in prison pending the determination of the appeal.

 

    It is discernible from the contents of these provisions in the Bail Act that the trend now is not to stay the execution of the Judgments unless the sentence is one of hard labour imposed by the Magistrate's Court or a sentence of death imposed by a High Court. Therefore it is seen that even in criminal matters stay of execution pending appeal is limited in scope. Automatic stay of execution operates only when the sentence is one of hard labour or death sentence.

 

    Section 68 or 69 of the Primary Court Procedure Act does not provide for an appeal against an order made by a Primary Court Judge. If at all the only remedy against such an order or determination is to move the High Court of the province in revision under Article 154 P of the High Court of the Provinces Special Provisions Law Act No.19 of 1990, or to move the Court of Appeal in revision under Article 138 of the Constitution. The intention of the legislature is not to provide an appeal against such orders because proceedings under the particular chapter are meant to be disposed of expeditiously as possible in order to prevent a breach of the peace. On the other hand orders under the Primary Court Procedure Act are temporary in nature subject to a final decision of a competent Court of civil jurisdiction. Legislature has deliberately

 

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refrained from granting the relief of appeal against such orders because the parties have an alternative remedy which is more effective and also which will finally and conclusively determine the rights of the parties. If an appeal is provided against such an Order, this process will be delayed and litigation will continue for a long period of time like in a civil suit. This is the mischief the legislature intended to avoid. The only inference that one could draw is that these provisions are meant to prevent a breach of the peace by obtaining an appropriate order as speedily as possible from the Primary Court Judge, after an inquiry held, and thereafter, if necessary, for the parties to have recourse to a properly constituted civil suit, in the relevant District Court, to have the matter fully and finally adjudicated. On the other hand although not specifically provided for, an aggrieved party can move in revision under Article 154 P of the High Court of the Provinces Special Provisions Act, against an order of a Primary Court Judge made under the particular chapter. In an application for revision, what could be decided is whether the decision is legal or illegal and not whether the decision is right or wrong. Therefore in an application for revision there is no question of a rehearing or the re-evaluation of evidence in order to arrive at a decision. In an application for revision the task of the High Court is to decide, not whether, the decision is right or wrong but simply whether the decision is legal or illegal. Revision applications could be disposed of easily and quickly unlike appeals, where the parties are allowed to re-agitate the entire matter. It is for this reason that the legislature has in its wisdom devised this stratagem to prevent inordinate and undue delay. Parties should not be allowed to achieve indirectly by resorting to devious or indirect methods, the very thing that the legislature directly

 

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intended to deprive them of. When an order of a Primary Court Judge made under this chapter is challenged by way of revision in the High Court the High Court Judge can examine only the legality of that order and not the correctness of that order. The High Court may be able to prevent a breach of the peace by issuing interim stay orders or by allowing an interim order made by the Primary Court Judge to remain in force. But what is the position when a person aggrieved by such an order made in revision by the High Court is also appealed against to the Court of Appeal. Is the Court of Appeal vested with the power to re-hear or allow the parties to re-agitate the main case by reading and evaluating the evidence led in the case in the Primary Court or is it that the Court of Appeal is restricted in its scope and really have the power only to examine the propriety or the legality of the order made by the learned High Court judge in the exercise of its revisionary jurisdiction. I hold that it is the only sensible interpretation or the logical interpretation that could be given otherwise the Court of Appeal in the exercise of its appellate jurisdiction may be performing a function the legislature, primarily and strictly intended to avoid. For the reasons I have adumbrated I am of the opinion that this particular right of appeal in the circumstances should not be taken as an appeal in the true sense but in fact an application to examine the correctness, legality or the propriety of the order made by the learned High Court Judge in the exercise of its revisionary powers. The Court of Appeal should not, under the guise of an appeal attempt to re-hear or re-evaluate the evidence led in the main case and decide on the facts which are entirely and exclusively matters falling within the domain of the jurisdiction of the Primary Court Judge. For the reasons I have stated I hold that orders given by Primary Court

 

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Judge under this chapter should be executed or implemented expeditiously as possible without undue delay. Unless there is a stay order currently in operation, there should be no automatic stay of proceedings for whatever the reason, otherwise that would negate and frustrate the very purpose for which these provisions were enacted, The Primary Court Procedure Act is an act promulgated by the legislature in recent times. Although there were similar provisions in the Indian Criminal Procedure Code, we in Sri Lanka, did not have such provision till the enactment of the Administration of Justice LawNo.44 of 1973 (Section 62) and later by the Primary Court Procedure Act. General laws, concepts and general principles whether they have been there from time immemorial should not be applied mechanically to new situations which were never in contemplation, when those laws, principles or concepts came into being. Extraordinary situations demand extraordinary remedies. It is the duty of a Court of law to give effect to the laws to meet new situations, by brushing aside technicalities, the so-called rules and concepts which cannot be reconciled should not be allowed to stand in the way of the administration of justice, causing hindrance impeding the very relief the legislature wanted to enact.

 

Thus I hold that their Lordships decision arrived at in R.A. Kusum Kanthilatha and Others v. Indrani Wimalaratne and Two Others, (supra) placing reliance on the dictum in Edward v. De Silva (supra) as authority for the proposition that once an appeal is taken against a judgment or a final order pronounced by a High Court in the exercise of its revisionary Jurisdiction ipso facto stays the execution of that judgment or order, is clearly erroneous. Lodging of an appeal does not ipso facto stay execution. Something more has to be done by

 

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the aggrieved party and something more has to be shown, to stay the execution of the judgment or order. It is not automatic.

 

For the reasons adumbrated I hold that there is no merit in this application for revision and dismiss the same without costs.

 

SALAM, J. - I agree.

 

appeal dismissed.