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Present : Wood Benton C.J. and De Sampayo J.
NAINA v. SEDEMBBAM.
85—D. G. Colombo, 45,538.
Idjiutment of decree—Paymentof aportioninpursuanceofadjustment
—Agreement to accept the balance in monthly instalments—Actionfor damages for wrongful seizure—Girnl Procedure Code, fs. 349,234, 225.
A judgment creditor sued out executionfor theentire decree
and seized property of the debtor, concealing from the Court thefact of an adjustment of the decree, whereby he agreed to acceptan immediate payment ofRs,2,000andthe balanceby equal
monthly instalments.The Rs. 2,000werepaid in pursuanceof the
agreement. Neitherthe paymentnoradjustment wascertified
when execution was issued ; but they were certified later. Underthe adjustment the creditor wasnot entitledtoapply for execution
at the time he did apply.
Held, that the creditorwasliableindamagesforwrongful
seizure. The certification of the adjustment and the payment ofthe first instalmentrelated back tothedate on which theadjust-.
ment and payment were made.
To procure, to the prejudiceof any one,maliciously andeither
by expressio falsi or suppressio veri the issueoflegalprocess,which
was perfectly justifiable on thematerials beforetheCourt,is an
rJ'HE facts are set out in the judgment.
A. St. V. Jayewardene, for defendant, appellant.
Baum, K.C., and Bartholomeusz, for plaintiff, respondent.
Cur. adv. vult.
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N<Una v. ■8edembram
September 28, 1917. Wood Renton C.J.—
This, case raises an interesting point of law. The defendanobtained judgment against the plaintiff in 40—D. C. ColomboNo. 42,619, and decree was entered up in his favour on Novembe17, 1915, the plaintiff being allowed time to pay the claim and costtill January 15, 1916. On the latter date the parties came to aiadjustment of the litigation. It was agreed that the plaintiff shoulimake an immediate payment of Rs. 2,000 to the defendant, an<that the defendant should accept payment of the balance due iiequal monthly instalments. In pursuance of this agreement, th»plaintiff on January 15, 1916, paid, and the defendant acceptedthe first instalment of Rs. 2,000. Neither this payment nor th«adjustment itself was at the time certified to the Court either by tbidecree-holder or by the judgment-debtor in compliance with thiprovisions of section 349 of the Civil Procedure Code. On January17 the defendant applied to the District Court for execution of th(entire decree entered up in his favour in the case, making no mentioiin his application of the adjustment arrived at on January 15, 1916or of the payment of the first of the stipulated instalments by thtjudgment-debtor on the same day. Execution was allowed, ancon January 24 the Fiscal, at the defendant's request, seized irexecution of the decree eight boats belonging to the plaintiff in ththarbour of Colombo, as well as a sum of Rs. 10,000 deposited bjhim with Messrs. Shaw, Wallace & Co. as security for the dueperformance of the contract. On January 26 the plaintiff movedto have the adjustment of the decree in the case certified in termsof section 349 of the Civil Procedure Code. The District Judge,after, inquiry., ordered this to be done, and his decision on the pointwas subsequently affirmed in appeal. The plaintiff now sues thedefendant for damages, alleging that, as a result of the seizure abovementioned, he had forfeited his contract with Messrs. Shaw,Wallace & Co., and had lost the profits on his boats for a periodof several days. The defendant in his answer pleaded that theplaintiff's action must fail, inasmuch as the alleged adjustmentof the decree had not been certified under section 349 of the Codeof Civil Procedure at the time when execution was applied for andissued. The learned District Judge has over-ruled this contention,and the defendant appeals.
In my opinion the ddecision of the District Judge is perfectlycorrect. He held incidentally, and I agree with him, that thecertification of,the adjustment of January 15, 1916, and the. pay-ment of the first instalment under it, related back to the date onwhich the adjustment and the payment were made. It is wellsettled as a rule of evidence—see, for example, Pitcha Tamby v.Mahamadu Khan *—that the effect of section 349 of the CivilProcedure Code is to render the certificate of adjustment or payment
1 (1891) 9 S. C. a 187.
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die sole admissible evidence of satisfaction of the decree.. But,n my opinion, we are here by no means exclusively concerned withlection 349 of the Civil Procedure Code. Section 224 (e) makes itnoumbent upon a decree-holder, who is applying for execution, toncorporate in his application an answer to the question “ whethermy and what adjustment of the matter in dispute has been madeDetween the parties subsequently to the decree. ” It will be observedshat this section speaks of the making of the adjustment, not of itscertification. It results by necessary implication from the provi-sions of section 225 that, if such an adjustment as had been reached,and such a payment as had been made, in the present case had beenbrought to the notice of the District Court on January 17, 1916,execution for the whole amount of the decree would not have beenallowed. Now, under section 349 it was the duty primarily of thedecree-holder, that is to say, of the defendant in this action, tocertify tiie adjustment and the payment to the Court. By hisfailure to do so he secured the issue of process, which would other-wise have been withheld, and I can see no reason either in law or in- common sense why his conduct should not be held to be actionable,if the plaintiff can prove as a fact that it has caused legal damageto himself. The case of In re Medai Kaliani Anni, 1 to which thedefendant’s counsel referred us, itself shows that, in such circum-stances as we have here to deal with, a breach by a decree-holder ofhis statutory duty to certify an adjustment or payment is a goodfoundation for an action by the judgment-debtor, if damage can bealleged and proved. The position is in no way modified by thefact that under section 349 of the Civil Procedure Code the judgment-debtor himself can certify the adjustment or the payment of theamount in dispute. The obligation rests, in the first instance, on thedecree-holder, and in the present case the wrong was done beforethe judgment-debtor had any reasonable opportunity of preventingit. Ih this connection I may refer to the decision of the Court ofAppeal in England in the case of Glissold v. Gratchley,2 whichshows that to procure maliciously and either by express™ falsi orsuppressio veri the issue of legal process, which was perfectly justifi-able on the materials before the Court, is an actionable wrong.
On these grounds I would dismiss the appeal, with costs.
Db Sampayo J.—
am of the same opinion. The adjustment of the decree in D. C.Colombo, No. 42,619, arrived at between the plaintiff and thedefendant, has, since the events which gave rise to this action, beenduly certified and recorded under section 349 of the Civil ProcedureCode, and there is therefore nothing in the way of its recognitionfor the' purposes of this action.
1U907) I. L. B. 30 Mad. 545.
2 (1910) 2.K.B. 244.
Da .Ba3ef .toJ.
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It is contended, however, that as the adjustment had not; beabcertified at the date of the. issue of execution the issue of process waslawful, and its execution, therefore, constituted no actionable wrong.
I think this argument is fallacious. The process and its executionwere no doubt lawful in the sense that the Court had jurisdictionto issue the process, and that the Fiscal had lawful authority tcexecute it, but whether the application for the process on the partof the defendant was not wrongful is a different question altogether.Moreover, as the learned District Judge has rightly observed, section849 of the Code provides only for a special method of proof, and whenthat requirement has been satisfied, the payment or adjustment wifibe efficacious as from the beginning, and consequently any executionin contravention of such payment or adjustment will necessarily beunjustified, though it may have been taken out prior to. the certifi-cation. It is also said that in any event the plaintiff's remedy is anaction for breach of agreement, and not one for damages for wrongfulissue of execution, and Mr. Jayewardene, for the defendant, hascited certain Indian decisions, but I do not think any of them is anauthority for the proposition that the form of action in the presentcase is not available. Poromanand Khasnabish v. Kkepoo Para-manich1 was chiefly concerned, not with the form of action, but withthe question whether a- separate action would lie. Moreover, itappears to me that the action in that case was for damages conse-quent on the wrongful execution of a decree which had been satisfied.In Krishnasami Ayyangar v. Ranga Ayyangar2 a decree for partitionhad been adjusted by an agreement that the plaintiff should gotsome specific land in respect of his share, and the action was for theland, or in the alternative for damages for breach of the agreement.The Court held that the claim for damages was maintainable, butthe claim for the land was not, which is a different thing fromholding that an action founded on tort was not maintainable if thenecessary facts existed. A similar remark applies to PeriatambiUdayan v. Vellaya Goundan.3 The case In the Matter of MedaiKaliani Anni* which has also been cited, appears to me an authorityagainst the defendant rather than for him. It is true that. theaction was for recovery of the money paid in pursuance of an •adjustment, but the claim was resisted only on the ground that,the decree not having yet been executed, there was no cause ofaction. The Court, however, held that the law cast on the decree-holder the duty of certifying any payment made out of Court insatisfaction of the decree, and that if he failed to do so there was abreach of duty, for which an action would at once lie. The lastIndian case above cited appears to me to indicate the true principleon which an action of this kind is founded. Section 349 of our Codealso casts the duty of certifying payments or adjustments primarily
1 (1884) I. L. R. 10 Cal. 854.8(1897)I. L. JR. 21 Mad. 409.
* (1896) I. L. R. 20 Mad. 369.4(1907)/. L. R. 30 Mad. 545.
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on the judgment-creditor. The judgment-debtor may also apply toCourt, but that is for his protection only, and not as a matter cf duty,whereas the judgment-creditor .has a statutory duty towards thejudgment-debtor. If the judgment-creditor, haying received themoney due, or having entered into, terms of adjustment of thi decree,iutentionally omits to perform that duty and takes out executionto the prejudice of the judgment-debtor, I cannot conceive that anylaw will hold him free from liability. In my opinion there is notmuch doubt about the law on this point. In addition to In theMatter of Medai Kaliani Anni (supra), I may refer to the Indiancase Ramayyar v. Ramayyar,1 in which it was held that the provisoin – question did not stand in the way of the judgment-debtor inproving the fact of concealment from the Court of the fact of anadjustment, and the fraudulent conduct of the judgment-creditorin obtaining the execution of the decree notwithstanding theadjustment. Our Common law is equally in favour of mi action formalicious issue of a civil process. Maasdorp, vol. IV., p. 80, says:" With regard to malicious proceedings, whether civil or criminal,it may be laid down generally that when a person sets the law inmotion, and damage to another person ensues therefrom, ho willbe liable in damages, if it can be shown that in doing so he actedmaliciously and without reason and probable cause." See alsoilid., p. 86. In this connection malice includes recklessness andintentional disregard of duty. The English law on this subject iswell stated in Clissold v. Cratchley,2 to which my Lord the ChiefJustice referred in the course of the argument. There the amountof the judgment had been paid to the country solicitor, but withoutthe knowledge of the plaintiff or his solicitor in London, and certainproperty having been seized under a fieri facias the action wasbrought to recover damages for improperly levying execution, and.in the alternative for trespass. The Court of Appeal held that theclaim on the latter cause of action was good, but that the first causeof action must fail because malice was absent. In the present casethe circumstances amply show that the defendant sued out executionagainst the plaintiff, deliberately concealing from the Court thefact of the adjustment and the actual receipt of money as aninstalment in pursuance of the adjustment, and that he therebyacted maliciously in the above sense.
. I agree that this appeal should be dismissed, with costs.
1 (1897) I. L. B. 21 Mad. 386.
* (1910) 2 X. B. 244.
NAINA v. SEDEMBRAM