Dissanaynke v. Jayawardene.
Present: Howard C.J. and Wijeyewardene J.
DISSANAYAKE, Appellant, and JAYAWARDENE,Respondent.
S. C. 143—D. C. Colombo, 191 X.
Claim by Co-operative Society—Action brought and decree entered—Referenceto arbitration—Res judicata—Co-operative Societies Ordinance—Chapter 107, section 45.
When a Co-operative Society brings an action in respect of a debtdue to it by a member and obtains a decree its claim is merged in thedecree and cannot thereafter be referred to arbitration under section 45of the Co-operative Societies Ordinance (Chapter 107).
294HOWARD C.J.—Dissanayake v. Jayawardene.
PPEAL from an order of the District Judge of Colombo.
N. E. Weerasooria, K.C. (with him Kinysley Herat), for the plaintiff,appellant.
A. Rajapakse, K.C. (with him H. A. Koattegod.de and G. T. Samara-wickreme), for the defendant, respondent.
March 11, 1947. Howard C.J.—
The appellant in this case appeals from an order of the District Judgeof Colombo, dismissing his application for the execution of an awardmade under section 45 of the Co-operative Societies Ordinance (Cap. 107).The award was made under sub-section (5) of this section and the matterhad been referred to the arbitrator by the Registrar under sub-section(2). The respondent was an ex-member of the registered society inquestion and it is maintained by the appellant that there was a debtdue by him to the registered society, having regard to the language usedin sub-section (1) of section 45 of this Ordinance. Sub-section (1) pro-vides that if any dispute touching the business of a registered societyarises amongst various categories of persons as set out in paragraphs(a), (b), (c) and (d), such disputes shall be referred to the Registrar fordecision. Sub-section (1) then reads as follows:—“A claim by aregistered society for any debt or demand due to it from a member,past member or the nominee, heir or legal representative of a deceasedmember, whether such debt or demand be admitted or not, shall bedeemed to be a dispute touching the business of the society within themeaning of this sub-section ”.
It would appear that in D. C. Colombo No. 46,956/M the Co-operative-Society sued the respondent to recover a sum of Rs. 890 and intereston a bond dated February 17, 1926. Decree was entered against .'thedebtor on January 26, 1932. On October 21, 1932, writ issued againstthe debtor and on October 18, 1932, an application was made for thearrest of the debtor. On November 29, 1933, the debtor moved that thewarrant should be re-called and his application was allowed on October17, 1934. On February 15, 1943, that is over ten years after the decree,a second application for writ was made. This application was refusedon May 27, 1943, because the decree was barred by prescription. In,spite of the fact that execution had been refused the appellant maintainsthat there was still a claim by the society for a debt or demand due fromthe respondent who was a past member of the society. The learnedDistrict Judge, as I have already said, dismissed this application, holdingthat the debt was merged in the decree and therefore the matter isres judicata and there is an estoppel.
In Spencer Bower on Res Judicata at page 177 we find the followingwords :—*“ Any cause of action which results in a judgment of an Englishjudicial tribunal whereby relief is granted to the plaintiff, or other “ actor ’in the proceedings, is in contemplation of law merged in the judgment,as soon as pronounced, and thereby loses its individual vitality, anddisappears as an independent entity, any English judgment even of thelowest degree being regarded as of a higher nature than any, even the
The King v. Piyadasa.
most important, cause of action Therefore, the cause of action no.longer remains and is superseded by the decree. Moreover, in the case ofSilva v. Leiris Appu1 we find that Koch J. has dealt with this matterin the following passage:—“Once the intervention of a Court has beensought and once a decree has been entered, the contractual relations aredetermined and the liability of one to the other is no longer under thecontract but under the decree which takes its place and which is theformal expression of the results arrived at by the judgment. Theparties thereupon pass out of the domain of contract and. enter that of adecree. Once this happens the common law ceases to operate so far asthe decree holder’s executory powers are concerned and the provisionsof the Civil Procedure Code come into play ”.
It is contended, however, in spite of this decision that the words “ aclaim by a registered society for any debt or demand due to it from amember or past member ” must be given their ordinary meaning andthat a claim still exists. We do not think this argument can be main-tained and that a claim by a registered society for any debt or demanddoes not include a decree of a court. In these circumstances we thinkthat the learned District Judge came to the right conclusion and theappeal is dismissed with costs.
Wijeyewardene J.—I agree.
DISSANAYAKE, Appellant and JAYAWARDENE, Respondent