The Supreme Court recently ruled that orders issued in execution proceedings do not constitute final judgments and, therefore, do not require a final appeal. Instead, such orders fall within the definition of an "order" under Section 754(2) of the Civil Procedure Code, which mandates that the proper procedure for challenging them is by seeking leave …
Orders in Execution Proceedings Are Not Final Orders: Leave to Appeal Required- SC
The Supreme Court recently ruled that orders issued in execution proceedings do not constitute final judgments and, therefore, do not require a final appeal. Instead, such orders fall within the definition of an “order” under Section 754(2) of the Civil Procedure Code, which mandates that the proper procedure for challenging them is by seeking leave to appeal. The Court emphasized that once a final judgment and decree are entered, any subsequent orders in execution proceedings remain interlocutory in nature and should be challenged accordingly.
“…in determining the nature of the order delivered by the District Court in this appeal, the difficulties that arose in the aforementioned cases in determining whether an order has the effect of a final judgment does not arise. I have already stated that the parties entered into a settlement on 11th November 1993 and that the decree based on such settlement was also entered on the same date. Thus, with the final judgment and decree in place, any other orders entered thereafter cannot be categorised as orders having the effect of a final judgment but would fall under the definition of an order. The scheme of the procedure adopted in a civil case, taken in conjunction with the spirit of Section 754 of the Civil Procedure Code does not permit me to arrive at any finding that an order made after the final judgment which has determined the rights and obligations of the parties can also have the effect of a final judgment….”
“…In these circumstances, I am of the view that an order made by the District Court in execution proceedings does not come within the definition of a judgment and as it is only an order, the procedure set out in Section 754(2) should have been followed by the Plaintiff in challenging the order of the District Court….” – – Justice Arjuna Obeyesekere.
Background:
In 1993, a property owner obtained a decree from the District Court to evict a tenant who had refused to vacate the premises. In May 1996, the owner applied for a writ of execution, which was granted, and the Fiscal attempted to enforce it in June 1996. During this process, the tenant partially complied, vacating a tiled house with two rooms but refusing to leave four adjoining shops, claiming they were not part of the property covered by the decree.
To resolve the issue, the owner and the tenant entered into a further settlement, giving the tenant time until July 1996 to vacate the shops. However, the tenant failed to comply again. As a result, in August 1996, the owner took steps to measure the property with the help of the Fiscal and a surveyor to establish its exact extent. The tenant, in response, went back to court, arguing that he was not required to hand over the additional portion of the property. The District Court, after a formal inquiry, dismissed his claim in January 1997 and upheld the writ of execution.
Unwilling to accept this ruling, the tenant filed a revision application in the Court of Appeal, challenging the enforcement process. Initially, the Court of Appeal issued an interim order suspending the writ of execution. Later, in May 1999, the court delivered its final decision, setting aside the writ of execution on the basis that the Fiscal had exceeded his legal authority in executing the decree. However, the court allowed the owner to file a fresh application if they still wished to enforce the decree.
For almost nine years, no further action was taken. In February 2008, the owner filed a fresh application in the District Court to substitute the deceased tenant’s family—his wife and children—as the new defendants and to proceed with writ execution. The tenant’s family objected, arguing that the application was time-barred under Section 337(1) of the Civil Procedure Code, which imposes a ten-year limit on enforcing a decree.
The District Court, in January 2009, upheld the objection and refused to issue the writ, ruling that the owner’s application had been made too late. The owner then appealed to the High Court, which in June 2013 overturned the District Court’s ruling. The High Court held that the writ of execution was still valid and that the eviction could proceed. Against that Judgment, Tenants came before the Supreme Court.
Ten-Year Time Bar Paused If Judgment Creditor Was Prevented from Execution
The Supreme Court clarified that the ten-year limitation period under Section 337(1) of the Civil Procedure Code must exclude any period during which the judgment creditor was legally barred from executing the decree. In this case, an interim stay order issued by the Court of Appeal prevented execution from February 1997 to May 1999. The Court determined that this 27-month period should be deducted from the limitation period, effectively extending the deadline to September 2008. Since the fresh application was filed in February 2008, it was deemed timely and valid.
“…Although I am in agreement with the High Court that the time period during which the Plaintiff could not have taken steps to execute the decree due to the interim order issued by the Court of Appeal, namely the period between 26th February 1997 and 31st May 1999 cannot be considered in the calculation of the ten year period for the purposes of Section 337(1), I am unable to agree with the conclusion reached by the High Court that the operative date for the purposes of Section 337(1) must be 31st May 1999 as such a conclusion is contrary to the provisions of Section 337(1)(b). In my view, the operative date for the commencement of the ten year period shall remain at 11th May 1996. However, once the period of 27 months that the interim order was in force is deducted in calculating the ten year period, the Plaintiff had time until early September 2008 to make a fresh application. The Plaintiff did so on 18th February 2008. I am therefore of the view that the second application for a writ of execution was made within the time period set out in Section 337(1)(b) of the Civil Procedure Code…” – Justice Arjuna Obeyesekere.
Effective Date of the Decree for Writ Execution
The Court further held that the operative date for the decree should not be the original date of judgment but rather the agreed-upon date in the settlement. Although the decree was entered on November 11, 1993, the parties had settled that the defendant could remain on the property until May 11, 1996. Since the defendant failed to vacate on that date, the owner’s right to seek execution arose only on May 11, 1996, making it the effective date for calculating the ten-year limitation period under Section 337(1).
“….Even though the decree was entered on 11th November 1993, the parties had agreed that the Defendant shall be entitled to occupy the premises until 11th May 1996. With the Defendant having gone back on his undertaking to hand over the premises on that date, the entitlement of the Plaintiff to take steps for execution of the decree arose only on 11th May 1996. Thus, the operative date for the purposes of Section 337(1) was 11th May 1996. The application for execution of the writ was made on 23rd May 1996. This application, which I shall refer to as the first application, is therefore compliant with Section 337(1)….” – Justice Arjuna Obeyesekere.
High Court Has Power to Act in Revision on Its Own Motion
The Supreme Court also criticized the High Court for failing to exercise its revisionary jurisdiction under Section 5A of the High Court of the Provinces (Special Provisions) Act. It noted that the High Court had the authority to act ex mero motu (on its own motion) to correct the District Court’s erroneous ruling. Instead, the High Court wrongly concluded that the plaintiff had properly invoked appellate jurisdiction, overlooking its duty to provide relief through revisionary intervention.
“…Section 753 of the Civil Procedure Code which is a section within the range of sections i.e., sections 765 to 777 referred to in Section 5A(2) of the Act gives the High Court powers of acting in revision in a situation of this nature on its own motion. It could thus be seen that there was a lapse on the part of the High Court when it ignored its powers of revision to provide relief to the Plaintiff. The High Court, instead, had proceeded to wrongly conclude that the Plaintiff had correctly invoked its appellate powers. I therefore hold that the correct approach that the High Court should have taken was: (a) to have held that the Plaintiff had not correctly invoked its appellate powers as it had not filed an application seeking leave to appeal but instead had filed a final appeal by way of a notice of appeal and a petition of appeal; and (b) to have thereafter exercised its powers of revision to give relief to the Plaintiff. The High Court has failed to do so and therefore has erred on that point…”
Supreme Court’s Power to Correct All Errors
The Supreme Court also in this case said that its constitutional power under Article 127 is to rectify all defects in the proceedings and ensure justice for the property owner. Despite the technical correctness of the preliminary objection raised by the tenant’s family in the High Court, the Court ruled that procedural defects should not obstruct substantive justice. The ruling reaffirmed that the Supreme Court possesses broad authority to intervene in cases of serious miscarriage of justice, allowing it to correct errors made by lower courts.
“..Whilst recognising that a party to an action cannot, for the first time before the Supreme Court, take up new positions which are not pure questions of law, Sharvananda J (as he then was) expressed a view similar to that expressed above in Albert v Veeriahpillai [(1981) 1 Sri LR 110, at page 113] when he stated that the appellate jurisdiction of the Supreme Court, “extends to the correction of all errors in fact or in law which shall be committed by the Court of Appeal or any Court of First Instance (vide Article 127 of the Constitution)… The appellate jurisdiction of this Court is very wide in its amplitude, as it should be, it being the final Court of Appeal.” In Karunaratne v Attorney General [(2020) 3 Sri LR 273, at page 295], Aluwihare, J whilst observing that “Article 127 is wide enough for this Court to intervene to prevent what otherwise would be a serious miscarriage of justice” held that this Court can “… act uninhibited suo motu in the interest of justice where the Court of Appeal or the court of first instance has clearly misdirected itself which has resulted in a serious miscarriage of justice, as in the present case.”…
“…The remedy to cure the injustice caused to the Plaintiff is therefore found in the power vested in this Court by Article 127 of the Constitution and as held by Aluwihare, J entitles the Court to act uninhibited suo motu in the interest of justice. Exercising such power conferred on this Court, I direct the District Court to allow the application of the Plaintiff made on 18th February 2008 and issue the writ of execution sought by the Plaintiff….” – Justice Arjuna Obeyesekere.
Liberal Approach to Judgment Creditors
The Supreme Court reaffirmed that execution proceedings should not be defeated on technical grounds, citing Samad v. Zain (1983 BALJ Vol. 1 Part V, 190). The court referenced Murugappa Chettiar v. Bandaranayake (43 NLR 489), which held that Section 337 is penal in nature and must not be strictly applied against judgment creditors. Further reinforcing this principle, the judgment in Nanayakkara v. Sulaiman (28 NLR 314) cited the Privy Council decision in Bissesur Lall Sahoo v. Maharajah Luckmessur Singh (6 Indian Appeals 233), emphasizing that execution proceedings must be governed by substance rather than form. The Supreme Court also relied on Fawzan v. Mohammed (SC Appeal No. 135/2017, SC Minutes of 31st March 2023), which stressed that courts should facilitate execution rather than hinder it with unnecessary technicalities.
“…I am of the view that Court should be mindful of the fact that by Section 337, a judgment creditor is trying to reap the rewards of his hard work having pursued a judgment debtor at great cost for several years and therefore, Court must not be overly technical when interpreting the provisions of Section 337 or be unduly harsh on the judgment creditor…” – Justice Arjuna Obeyesekere.
Court Imposes Rs. 1 Million Cost Order for Dilatory Tactics
In a strong rebuke against dilatory tactics, the Supreme Court imposed a cost order of Rs. 1 million on the tenant’s family. The Court considered the prolonged nature of the case—spanning over 28 years—and the tenant’s repeated refusals to comply with court orders. Noting that the plaintiff had been unfairly deprived of the property for decades, the Court awarded costs for proceedings before the District Court, High Court, and Supreme Court, ensuring that justice was finally served.
Case No: SC Appeal No: 151/2014 [Decided on 19.12.2024]
Before: P. Padman Surasena, J Yasantha Kodagoda, PC, J Arjuna Obeyesekere, J
