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Present: Mr. Justice Wendt and Mr. Justice Middleton.1908.
TTVR.ATTTM SAIBO v. SILVA.
D. C., Badvlla, 1,292.
Civil Procedure Code. t. 337—Application for Writ—Failure to take outwrit—Subsequent application—'' Due diligence."
Where an application for writ is allowed once, bnt no writ istaken out, and a subsequent application is made for execution ofwrit, the provisions of section 337 of the Civil Procedure Code asto .the exercise of due diligence apply.
N this case the plaintiff obtained judgment against the defendanton March 30, 1897, and thereafter duly filed an application for
execution of the decree, which was allowed on March 1, 1898. Theplaintiff, however, took no steps to execute the decree.
On April 12, 1907, the plaintiff filed an affidavit setting out thathe had omitted to take steps to execute the decree earlier owing tothe defendant having left the district and his whereabouts not beingknown; that the defendant had now returned to his village and wassaid to possess property, and that the amount of the plaintiff’s claimwas still due, and thereupon moved for a notice on the defendant toshow cause wiy writ should not be issued against him to recover theamount of the judgment. This notice was served on the defendant,who appeared on August 7, 1907, and stated that he had settled thedebt, and the matter was then fixed for argument on that issue.
On October 16, on the case being called, the defendant’s proctor,abandoning the issue, contended (a) that section 347 of the CivilProcedure Code had not been complied with, and (b) that undersection 337 of the Civil Procedure Code the issue of writ wasprescribed. The District Judge (W. A. G. Hood, Hsq.), on October19,- delivered judgment over-ruling the first of these objections, butupholding the second contention, and disallowed the plaintiff’sapplication with costs.
The judgment of the District Judge was as follows: —
“ Taking the two points raised by defendant’s proctor in order,
“ (1) That though no copy of the affidavit attached to the plaintiff’smotion was served on defendant, yet the purport of the motionitself was, and this, I consider, to meet the requirements of section347, which requires service of ‘ the petition- ’ only. I cannot thinkthat this means a copy of the affidavit (as in the present case), orthat a separate petition (with affidavit) is necessary in addition tothe motion. I over-rule the first objection.
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That, though plaintiff’s proctor is literally right in his con-tention that no term is set by the Code for the issue of writ afterapplication granted, yet the argument that the application granted,on March 1, 1898, is therefore still pending, ami can be acted uponat any future time, however distant, seems clearly opposed to theintention of section 337. Though that section omits reference to the •issue of writ, the clause ‘ on the last preceding application duediligence was used to procure complete satisfaction of the decree ’implies, beyond question, that application for execution and issueof writ were considered as forming a single act, not two distinctoperations. In the present case decree was entered on March 20,1897; application for execution was allowed on March 1, 1898, andnothing further was done till the present affidavit of April 12, 1907,was filed. The affidavit sets forth' the reasons why earlier steps,were not taken; and an Indian decision was quoted to me to provethat defendant’s absence and evasion constitute ‘ fraud ’ (as perlast part of section 337); but I do not think this decision would bindme in a Ceylon case, and in any case I certainly cannot find that‘ due diligence has been used ’ in connection with the originalapplication for execution, when writ never issued upon it. Thereason alleged may be genuine enough, but under the circumstanceaI find that section 337 does apply, and that the issue of writ is nowprescribed. I therefore uphold the second objection, and disallowthe motion with costs. ”
The plaintiff appealed.
Van Langenberg, for the plaintiff, appellant.
Tambayah, for the defendant, respondent.
Cut. adv. vult.
February 28, 1908. Wendt J.—
This is an appeal by the plaintiff against an order of the DistrictJudge refusing to let him take out a writ of execution for the neooveryof the judgment amount. The judgment was an ordinary moneydecree, and was dated March 30, 1897. On March 1, 1898, theplaintiff made his first application for execution, stating that thewhole judgment and costs were still unpaid. The application wasallowed, but plaintiff never took out the writ, nor did he take anyother step in the action until April 16, 1907, when he filed anaffidavit and moved for a notice on the defendant to show cause whythe judgment should not be revived and writ issued against him torecover the judgment amount. The affidavit stated that “ theomission to take steps earlier was owing to defendant’s having leftthe district and his whereabouts not being known; that the defendanthad now returned to his village and was said to possess property.The notice asked for was allowed, and on the returnable day it was
contended for the defendant, among other points "which it is not 1908.necessary to notice, that the application could not be granted, as the J'efattary 28-ten years’ period of limitation prescribed by section 387 of the Civil Wendt J,Procedure Code had elapsed. This contention the District Judgeupheld and disallowed the application.
It was argued before us for the appellant that section 337 did notapply because it was in terms directed against “subsequent”applications for execution, and the plaintiff’s present application.was not an “ application to execute the decree, ” but merely arequest to be allowed to take out the writ which had been allowedupon the application of March, 1898. I am of opinion that thiscontention cannot be sustained. It is true that the Code does notexpressly enact that the writ of execution should be taken out.within any defined period after the Court has sanctioned its issue.
That is because the issue of the writ is a public ministerial act whichthe law expects to be done forthwith according to the routine ofbusiness in the office of the Court. It was never contemplated thata decree-holder, having satisfied the Court of his present right toexecute the decree, could lie by for an indefinite period, during whichthe circumstances as to which the Court had required to be satisfiedmight materially have altered, and then take out his writ as a matterof course. In the present instance the plaintiff failed to takeadvantage of the Court’s order granting him execution of the decree,with the result (as he himself recognized) that a new application wasnecessary. I am unable to distinguish between the applicationwhich he then made and the ordinary application for execution. Hewas allowed to execute the decree; he took no single step towardsdoing so; and he now again seeks to execute the decree. The Courtis reasonably entitled to ask that it be again satisfied as to theparticulars contemplated by section 224 of the Code, and theapplication is in my opinion a “ subsequent application, ” which theCourt is precluded from granting after the lapse of ten years fromthe date of the decree. The view I am taking does not in any wayconflict with the decision of the Full Court in Silva v. Singho,1where it was held that upon a first application to execute adecree, even though such application was made several years afterthe date of the decree, it is not incumbent on the creditor to showdue diligence in seeking to obtain satisfaction of the decree.
I think the appeal should be dismissed with costs.
I agree that this appeal should be dismissed. The applicationupon which the order appealed against was made must be and is inmy opinion, from the circumstances connected with the application1 (1907) 10 N. L. B. 312.
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1908. antecedent to it, and from the provisions of sections 224 and 225 of theFebruary 28. Qjyji Procedure Code, a subsequent application to that which was madeMmiyramw on March 1, 1898.
The judgment sought to be executed was dated March 30, 1897,and this subsequent application to execute it was made on April 16,1907, and is> therefore in my opinion barred by the terms of section337 of the Civil Procedure Code.
IBRAHIM SAIBO v. SILVA