This is an appeal from an interim order made by the Court of Appeal restoring possession of certain premises to the defendant, the respondent in the appeal under discussion. (Brooke Bond (Ceylon) Limited. v. Gunasekera – SLR – 71, Vol 1 of 1990 [1989] LKSC 3; (1990) 1 Sri LR 71 (6 June 1989).).
The appeal was to the Supreme Court, from the aforementioned Appeal Court order. It was pending the final disposal of the 
defendant’s application to revise the ejectment order by the District Court.
To recap the circumstances, the plaintiff, now appellant, sued to eject the defendant from the premises claiming he was an overstaying licensee. The District Court ruled in favour of the plaintiff and ordered the defendant’s ejectment. Both parties filed appeals against parts of the decree for ejectment.
The plaintiff then filed an application for execution of the decree by way of a writ of ejectment. The defendant objected and requested a stay on the execution of decree, pending his appeal. The District Court however allowed the writ, and the defendant was ejected from the premises.
The defendant then filed an application in the Court of Appeal seeking revision of the District Court’s order and interim relief for regaining possession, pending the revision application’s disposal. The Court of Appeal granted interim relief restoring the defendant’s possession.
The appeal centres on the interpretation of Section 761 of the Civil Procedure Code, which restricts the execution of appealable decrees. The dispute revolves around when the “time allowed for appealing” from such a decree expires. In simpler words, a writ cannot be executed unless the time to prefer and appeal has elapsed. However, essentially the question which went to Supreme Court was, what exactly was this time limit, 14 days or 60 days?
The plaintiff argued the appeal period is 14 days, the timeframe for filing a notice of appeal. An appeal is considered “preferred” upon giving notice to the District Court.
The following excerpt from the judgment of the Supreme Court mulls the question of time limits:
“A perusal of the order of the Court of Appeal discloses that the basis upon which it granted interim relief to the defendant was the acceptance by it prima facie, of the submission advanced on behalf of the defendant that the District Court had no jurisdiction to entertain the application for writ made to it on 6.2.1987 for the reason that when it was filed on that date the time allowed for appealing from the judgment and decree of the District Court (delivered on 19.1.1987) had not expired. It was urged on behalf of the defendant in the Court of Appeal (as well as before us) that the time allowed for appealing from an appealable decree of the District Court was 60 days. …”
In short, the defendant’s Argument was upheld by Court of Appeal prima facie. The defendant argued the appeal period is 60 days, the timeframe for filing a petition of appeal. Their counsel contends that Section 761 prohibits execution applications before the 60 days expire, or a petition is filed within that period. In other words the tenant could have not been ejected by execution of decree when the time period for appealing was not up, the defendant had argued.
The Supreme Court found it necessary to definitively decide this point. The judgment analysed the relevant sections, 761 and previous versions, and their historical contexts. The entire analysis is omitted here for brevity.
Before 1974, the Code allowed the judgment creditor to file an execution application immediately after the decree’s pronouncement. There was no restriction on the timing and the judgment debtor wasn’t required to be a party to the application.
The Supreme Court judgement disagreed with a previous court decision, Careem and another v. Amerasinghe (1 Sri Kantha Rep. 25) on the interpretation of the time limit for filing an appeal under the Civil Procedure Code (CPC).
In Careem v. Amerasinghe it was argued that an appeal is only considered “preferred” after both the notice of appeal, within 14 days, and the petition of appeal within 60 days, are filed.
The Court disagreed with Careem v. Amerasinghe and argued that filing the notice of appeal within 14 days is sufficient for an appeal to be considered “preferred” under Section 761.
A brief breakdown of Supreme Court’s reasoning is that the clear language of Section 754(3), states that an appeal is lodged or initiated upon presenting the notice of appeal. This approach aligns with the system introduced by Law No. 44 of 1973, which shifted the focus to notice-based appeals.
Court dwelled on the limited usefulness of prior Judgement in Vithane v. Weerasinghe ((1981) Sri L. R. 52.) The court acknowledged observations made by Justice Wanasundera in Vithane v. Weerasinghe. However, the judges argued that Wanasundera’s comments were not directly relevant to the current dispute.
Justice Wanasundera’s discussion cantered on the Court of Appeal’s power to grant relief for missed deadlines, not the definition of “appeal preferred” under Section 761.Wanasundera J’s use of terms like “two-stage process” referred to the entire pre-hearing procedure, including filing written submissions under the previous Law No. 44 of 1973. The Supreme Court argued that this doesn’t contradict their interpretation based on Section 754(3).
The judgement implicitly criticized Careem v. Amerasinghe on the following grounds. There should be a justification for extended timeframe to consider an appeal as preferred, it was held. Extending the appeal period from 14 days to 60 days finds no justification in the Code, or in the logic of expediting judgements.
The Code prioritises the notice of appeal, it was held. For example, it requires a stamp duty, and failure to file it within 14 days bars its acceptance, while missing the petition filing deadline has no such consequence.
Basically Court concluded that the decision in Careem v. Amerasinghe is deemed wrong and is overruled. There is 14-day Limit for “Appeal Preferred”. For Section 761 of the Civil Procedure Code, the time allowed for appealing is 14 days i.e. notice of appeal filing deadline. An appeal is considered “preferred” upon filing the notice within 14 days as per Section 754(3).
The judgement didn’t address other points raised in the case due to the above conclusion. These include whether the Court of Appeal’s revisionary powers could be used in this specific situation. Whether the defendant could raise the issue of the District Court’s competency for the first time in the Court of Appeal, was also not considered.
The appeal was allowed. The Court of Appeal’s order was set aside. The application challenging the execution order was dismissed, which means the tenant will be evicted.
The Court of Appeal was directed to expedite hearing the appeals against the original judgement. The plaintiff was awarded costs for the appeal.
