A Case of Prolonged Execution and Legal Technicalities

Introduction

The Supreme Court of Sri Lanka, in its judgment delivered on 14th March 2025, addressed a complex and protracted legal dispute concerning the execution of a decree related to the possession of a Buddhist temple, Jinaraja Viharaya, in Veyangoda. The case, which spanned over three decades, involved multiple legal proceedings, appeals, and revisions, highlighting the challenges faced in executing court decrees in Sri Lanka. The judgment, authored by Justice Mahinda Samayawardhena, provides a comprehensive analysis of the legal principles governing the execution of decrees, the role of the Fiscal, and the procedural requirements under the Civil Procedure Code. This article delves into the key legal points discussed in the judgment, supported by quotations from the judgment and relevant case law.

Background of the Case

The dispute originated in 1995 when the original plaintiff, Rev. Ratmale Sri Somarathna Thero, filed an action in the District Court of Gampaha seeking a declaration that he was the rightful Viharadhipathy (chief incumbent) of Jinaraja Viharaya and the recovery of damages from the defendant, Rev. Omalpe Somananda Thero, who was in possession of the temple. The defendant contested the claim, asserting that the temple premises had been gifted to the Paththalagedara Sri Ubhayalokartha Saadhaka Bauddha Samithiya by a deed dated 03.05.1915.

After a lengthy trial, the District Court ruled in favor of the plaintiff on 05.05.1997, ordering the eviction of the defendant and the recovery of possession and damages. The defendant appealed this decision, but the appeal was abated by the Court of Appeal on 21.02.2003 due to the defendant's death and the lack of steps to prosecute the appeal. The decree was then entered in the District Court, and the execution process began.

However, the execution of the writ faced significant resistance. On 25.09.2003, when the Fiscal attempted to deliver possession to the plaintiff, another priest, Rev. Parakandeniye Dhammathilaka, was found in possession of the temple, claiming authority from the Dayaka Sabhawa (temple management committee). The Fiscal reported the resistance to the court, and the plaintiff-judgment creditor filed an application under section 325 of the Civil Procedure Code to address the obstruction.

The District Court dismissed the claim of the Dayaka Sabhawa on 29.07.2004, and the Court of Appeal affirmed this decision on 19.10.2007. Meanwhile, the original plaintiff passed away on 23.11.2005, and the District Court substituted the present plaintiff, Rev. Ratmale Sri Somarathna Thero, by order dated 08.12.2008.

The substituted plaintiff sought to reissue the writ, appointing Rev. Omalpe Somananda Thero as the executor de son tort (a person who wrongfully interferes with the estate of a deceased person) for the purpose of executing the decree. The District Court granted this request on 25.11.2009. However, the execution process was again obstructed, leading to further legal proceedings.

Key Legal Issues and Analysis

1. Abuse of Execution Procedure

The judgment highlights the abuse of the execution procedure, which deprived the plaintiff of the fruits of his victory for nearly three decades. Justice Samayawardhena observed:

"This is yet another textbook case of the abuse of the execution procedure to deprive the judgment-creditor of the fruits of his victory. Despite the judgment of the District Court having been delivered 28 years ago, the plaintiff has still been unable to execute the writ."

This observation underscores the systemic issues in the execution process, where parties resort to delaying tactics, including filing multiple applications and revisions, to frustrate the execution of decrees.

2. Revision Applications and Procedural Requirements

The appellant, Rev. Omalpe Somananda Thero, filed a revision application before the High Court of Civil Appeal, seeking to set aside the District Court's order appointing him as the executor de son tort. The primary contention was that the order was made ex parte without affording him an opportunity to be heard.

Justice Samayawardhena emphasized the settled law that a party affected by an ex parte order must first apply to the court that made the order before approaching a higher court. Citing Andradie v. Jayasekera Perera [1985] 2 Sri LR 204, the judgment states:

"The practice has grown and almost hardened into a rule that where a decree has been entered ex parte in a District Court and is sought to be set aside on any ground, application must in the first instance be made to that very Court."

The judgment further cites Hotel Galaxy (Pvt) Ltd v. Mercantile Hotels Management Ltd [1987] 1 Sri LR 5, where Atukorale J. held:

"A party seeking to canvass an order entered ex-parte against him must apply in the first instance to the court which made it. This is a rule of practice which has become deeply ingrained in our legal system."

The appellant's failure to first approach the District Court before filing the revision application was a critical procedural error, leading to the dismissal of his application.

3. Role of the Fiscal in Execution Proceedings

The judgment provides a detailed analysis of the Fiscal's role in executing writs of possession under section 324 of the Civil Procedure Code. The Fiscal is authorized to deliver possession to the judgment-creditor or their nominee, even if it involves removing any person bound by the decree who refuses to vacate the property. However, if the property is occupied by a tenant or another person entitled to occupy it, the Fiscal can deliver constructive or symbolic possession.

Justice Samayawardhena criticized the popular misconception that the Fiscal must return the writ unexecuted upon encountering resistance. Citing Tyagarajah v. Perera [1983] 1 Sri LR 384, the judgment states:

"At the outset it is well to remember that in execution proceedings the statutory procedures are so designed as to assist the judgment-creditor to recover the fruits of his judgment and not to afford facilities to the judgment-debtor to defeat or delay the execution of the decree of court."

The judgment further clarifies that the Fiscal should not abdicate his duty merely because a party objects to the execution. The objection must be well-founded, and the Fiscal must be prima facie satisfied that there is a bona fide claim. In Weliwitigoda v. U.D.B. De Silva [1997] 1 Sri LR 51, the Supreme Court held that the Fiscal need not surrender to resistance unless there is a prima facie case made out by the party resisting.

4. Appointment of Executor de son Tort

The judgment addresses the legal fiction of the executor de son tort, a person who wrongfully interferes with the estate of a deceased person. The appellant was appointed as the executor de son tort for the purpose of executing the decree after the death of the original defendant.

Justice Samayawardhena explains that an executor de son tort can be considered a legal representative under section 341(1) of the Civil Procedure Code, citing Nesaratnam v. Vaithilingam (1975) 78 NLR 457:

"The trend seems to favour an extended meaning to be given to the term executor or administrator as to include an executor de son tort. Both reason and logic seem to favour this view, particularly in interpreting section 341 of the Civil Procedure Code."

The judgment also refers to Dahanayake v. Jayasinghe (1966) 71 CLW 112, where it was held that an executor de son tort is a legal representative for the purpose of execution proceedings.

5. Substitution of Parties and Notice Requirements

The judgment discusses the substitution of parties after the death of the original plaintiff and the notice requirements under section 341(1) of the Civil Procedure Code. The appellant argued that the substitution was improper and that notice should have been issued before the execution of the writ.

Justice Samayawardhena clarifies that while notice to the legal representative is generally required, failure to issue notice is not fatal if the legal representative is otherwise aware of the execution process. Citing Tyagarajah v. Perera [1983] 1 Sri LR 384, the judgment states:

"It is now settled law that service of notice on the legal representative prior to execution is mandatory and failure to do so is a fatal irregularity. However, it was further held that where the legal representative becomes otherwise aware of the application for execution, the failure to issue notice before issuance of writ is not fatal."

In this case, the appellant was aware of the execution process, as he was appointed as the trustee of the temple by the Dayaka Sabhawa, which had previously resisted the execution.

6. Remedies for Wrongful Dispossession

The judgment highlights the remedies available under section 328 of the Civil Procedure Code for persons wrongfully dispossessed during the execution of a decree. Section 328 allows a dispossessed person to apply to the court within fifteen days of dispossession, and the court must hold an inquiry to determine the rightful possession.

Justice Samayawardhena emphasizes that execution proceedings should not be impeded by technical objections, citing Brooke Bond (Ceylon) Ltd v. Gunasekara [1990] 1 Sri LR 71:

"The provisions relating to execution proceedings should not be construed in such a way as to lightly interfere with a decree-holder’s right to reap the fruits of his victory as expeditiously as possible."

The judgment also refers to Ekanayake v. Ekanayake [2003] 2 Sri LR 221, where Amaratunga J. held:

"Execution is a process for the enforcement of a decreed right, mere technicalities shall not be allowed to impede the enforcement of such rights in the absence of any prejudice to the judgment debtor."

7. Technicalities in Execution Proceedings

The judgment reiterates the principle that execution proceedings should focus on the substance rather than the form. Citing Nanayakkara v. Sulaiman (1926) 28 NLR 314, Justice Samayawardhena states:

"In execution proceedings, the Court will look at the substance of the transaction, and will not be disposed to set aside an execution upon merely technical grounds, when the execution has been found to be substantially right."

This principle has been consistently upheld in Sri Lankan jurisprudence, as seen in cases like Suppramanium Chetty v. Jayawardene (1922) 24 NLR 50 and Wijewardene v. Raymond (1937) 39 NLR 179.

Conclusion

The Supreme Court's judgment in SC/APPEAL/206/2012 provides a comprehensive analysis of the legal principles governing the execution of decrees, the role of the Fiscal, and the procedural requirements under the Civil Procedure Code. The case highlights the challenges faced in executing court decrees, particularly in cases involving prolonged resistance and procedural delays. The judgment underscores the importance of adhering to procedural requirements while emphasizing that execution proceedings should not be impeded by technical objections. Ultimately, the court dismissed the appeal, allowing the substituted plaintiff to execute the decree and obtain possession of the temple premises.

This case serves as a reminder of the need for expeditious and effective execution of court decrees to ensure that judgment-creditors can reap the fruits of their victory without undue delay. It also reinforces the principle that execution proceedings should focus on the substance of the matter, rather than being derailed by technicalities.