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KONNEHAMY v. DE SILVA.
’ D. C., Matara, 779.
Evidence—Proof of payments on judgment-debt—Action for moneys over-paid—Civil Procedure Code, s. 349—Costs.
Where a judgment-debtor sued his creditor for recovery of moneysoverpaid on the decree, held, that it was not competent to him toprove payments except as certified under section 349 of the CivilProcedure Code.
Held also that the costs in the Court below should be taxed asthough the proceeding had been not an action, but a petition undersection 349.
LAINTIFF alleged that he was judgment-debtor in D. C.
case No. 35,876-; that his creditor (who was plaintiff in thelatter case and defendant in the present case) recovered from himvarious sums of money, leaving a balance of only Rs. 486 ; that,notwithstanding, the defendant sued out a writ of execution forVol. HI.12(56)29
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1896. Rs. 877 and recovered from him the whole of that amount. HeOctober 8. now prayed that the defendant might be decreed to pay to plaintiffthe sum of Rs. 391 recovered in excess from him by the defendant.
When the plaint was filed defendant took objection that theplaintiff ought to have proceeded by petition under section 349of the Civil Procedure Code and had the alleged payments certified.The District Judge upheld the objection and returned the plaint toplaintiff, who thereupon filed a second plaint, which was open to asimilar objection, but no objection having been taken the DistrictJudge heard the case on the issues framed, viz.:—
Whether plaintiff had paid defendant two sums of Rs. 327and Rs. 150 before the payment of Rs. 400 on October 31, 1892 ;and
Whether the two receipts which plaintiff produced, pur-porting to bear the signature of the defendants, for the two .sumsof money were forgeries or not.
The District Judge, after evidence heard, decided both the issuesagainst the plaintiff.
Sampayo, for appellant.
Domkorst, for respondent.
8th October, 1896. Bonser, C.J.—
In his judgment the District Judge called attention to variousmatters which discredited the plaintiff’s story, amongst them thatthe plaintiff was a trader and a man of business, and would not belikely to make such a mistake as to overpay his creditor ; that hedid not commence the action till six months after the discovery ofhis mistake : that the account which he gives of the payment of thefirst sum of Rs. 327 was contradicted by the evidence of Mr. Goone-ratna, the Deputy Fiscal; that when he filed his plaint he did notmention the fact that he held these two receipts ; that two of thewitnesses whom he called to prove these payments were notmentioned in his original list of witnesses ; that the notarial receipt,which was admittedly given by the defendant on the last occasionwhen money was paid by the plaintiff to the defendant, contains noreference to this previous payment.
All these things influenced the mind of the District Judge andbrought him to the conclusion that the story of the plaintiff wasuntrue. The evidence as to the handwriting is not of a very satis-factory character, and the District Judge was justified in attachinglittle weight to it.
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Nothing which has been said by Mr. Sampayo has satisfied methat the District Judge has arrived at a wrong conclusion. I amtherefore of opinion that the appeal must be dismissed.
There is to my mind a fatal objection that the evidence as tothese payments ought not to have been admitted contrary to theprovisions of section 349 of the Civil Procedure Code. But wedo not dismiss the appeal on that ground as we might, becausethe parties had evidently agreed to try these issues, and we con-sented to hear the appeal as though it had been an appeal from apetition by a judgment-debtor under section 349, which the Court'had decided against the petitioner. But at the same time the costsin the Court below must be taxed as though the proceeding had beennot an action, but a petition under section 349.
The respondent will have his costs of the appeal.
I am quite prepared to agree with the decision of the DistrictJudge, and with the grounds he has assigned for his decision.
KONNEHAMY v. DE SILVA