390DALTON A.C.J.—Rudd v. Abdul Rahaman.
1933Present: Dalton A.C.J. and Koch A.J.
RUDD v. ABDUL RAHAMAN.
97—D. C. (Inty.), Colombo, 48,302.
Execution—Application for a writ following judgment—Delay in enteringdecree—Defendant’s application to vacate issue of writ—Order forsecurity—Civil Procedure Code, ss. 761 and 763.
Judgment in this case was delivered on February 13, and on that daythe plaintiff applied for execution of his decree, which was allowed onFebruary 16. The decree was not entered and signed till February 15.The defendant appealed from the judgment on February 15 and appliedon February 20 to have the order allowing writ to issue vacated.
Held, that the decree related back to the judgment and that, as noappeal was pending at the time of the application for writ, executioncould only be stayed upon the conditions specified in the proviso tosection 761 of the Civil Procedure Code.
PPEAL from a judgment of the District Judge of Colombo.
Grotiaen, for defendant-appellant in No. 97 and-for plaintiff-respondentin No. 152.
Hayley, K.C. (with him S. A. Marikar), for plaintiff-respondent in No. 97and for defendant, appellant in No. 152.
Cur. adv. vult.
October 25, 1933. Dalton A.C.J.—
There are two appeals before us in this case, the final appeal (No. 97)of which can be conveniently dealt with first. The appellant in thatappeal is the defendant in the action. The plaintiff sought to recoverfrom him the sum of Rs. 3,183.56, principal and interest alleged to be dueon a promissory note for Rs. 2,000, dated April 1, 1921. The defendantin his answer pleaded that the note sued on was tom or destroyed on orabout April 1, 1926, on the settlement of all transactions on the note.The note has been torn in two pieces about one-third of the distance fromtop and the two pieces are carefully joined at each side by adhesive paper.
The only question raised on this appeal before this Court was that thenote appears to have been cancelled by being torn in two portions andtherefore the onus lay on the plaintiff, under the provisions of section63 (3) of the Bills of Exchange Ordinance, to show that the cancellationwas made unintentionally or under a mistake or without authority.
DALTON A.C.J.—Rudd v. Abdul Rahaman.
Apart from the tear across it, the note is in good condition consideringits age. When the action was started by her attorney, he swore anaffidavit in the usual form on March 4, 1932, producing the note andswearing that the amount thereof was due with interest. The Justice ofthe Peace before whom the affidavit was sworn thereupon signed anendorsement on the back of the note to the effect that was the exhibitreferred to in the affidavit. The note is torn directly through thatendorsement an examination of which leads one to the conclusion thatthe endorsement could certainly not have been written there, as it hasbeen written, when the note was in two portions. On an examination ofthis note there is nothing that in my opinion would justify any conclusionthat there has been an apparent cancellation as is urged.
The case, however, does not end there, for in fact the plaintiff did begin.This was probably due to the fact that, the note dating from 1921, theaction would be prescribed unless something was proved to take it outof the Ordinance. The evidence led also had reference, however, to thetearing and alleged cancellation. Mr. F. W. de Vos was called for theplaintiff. He stated she lived in England and was a client of Mr. A. Alvis,who was her attorney and had moneys of hers in Ceylon. The note is inMr. Alvis’ writing and on his stamped paper. He died in April, 1922, andMr. de Vos who was his assistant was then made the plaintiff’s attorney.Interest was paid by defendant on the note up to the end of March, 1926.The witness denies there was any settlement of the note in April, 1926, orthat the note was torn up after such a settlement. In 1931 the GsQahaCeylon Tea Estates and Agency Company, Ltd., was appointed plaintiff'sattorney in place of the witness, who states he thereupon handed allpapers belonging to the plaintiff including the note in question to thenew attorney's proctors, Messrs. Julius & Creasy. The witness states thenote was not tom in half, so far as he recollects, at that date, and if it hadbeen so torn he would have remembered it.
After this evidence, no evidence at all was led on behalf of the defendant,and the trial Judge entered judgment for the plaintiff as prayed for, withcosts, giving his reasons for doing so. On the appeal, in my opinion, noground has been put forward to show that decision is wrong and theappeal (No. 97) must therefore be dismissed with costs.
The interlocutory appeal (No. 152) arises out of a refusal of the trialJudge to allow execution to issue without plaintiff giving security in thefull amount of his claim. In view of the decision now come to in the finalappeal, the only question involved now in this further appeal is one ofcosts.v
The judgment in the lower Court in favour of the plaintiff was deliveredon February 13, and thereafter about noon the same day plaintiffapplied for execution. The decree for some reason was not entered and,signed until February 15, and this application for execution was heldback until the decree was signed, being allowed on February 16. Whensigned, the decree bears the same date as, and relates back to, the dateof the judgment. Meanwhile on February 15 the defendant appealedagainst the judgment, and on February 20 he applied to the Courtasking it to vacate the order of February 16 allowing the writ. OnFebruary 24 this application was heard and order was made setting
392DALTON A.C.J.—Rudd v. Abdul Rahaman.
aside the previous order made and allowing plaintiff to execute the decreeonly on his giving security to the full amount of his claim by hypothecatingImmovable property to that value or depositing cash for the amount.The learned Judge dealt with the matter under section 763 of the Code,dealing with plaintiff's application for writ, made on February 13, asone made after an appeal had been lodged.
1 think the learned Judge was wrong. The plaintiff’s application,having been made before any appeal had been lodged, came under section761 of the Code. The plaintiff, having hastened to make the application,and at a time when she might reasonably have expected the decree tohave been entered, should not be prejudiced by the failure of a clerk toenter up the decree as soon as possible after judgment. As pointed outby de Sampayo J. in Perera v. Fernando the drawing up of the decree isa formality which when complied with relates back to the date of thejudgment. The decree then here is dated February 13 and the applica-tion made thereafter is of the same date. At the time of the applicationno appeal had been lodged and therefore the provisions of section 761apply to any application made for a stay of execution.
The appeal must therefore be allowed and the defendant’s applicationto vacate the order for issue of writ and for a stay of execution shouldonly have been allowed on the Court satisfying itself in accordance withthe proviso to section 761. There was no order as to the costs of thisinquiry in the lower Court, but appellant is entitled to her costs of this(No. 152) appeal.
Koch A.J.—I agree.
» 17 N. L. R. 300.
RUDD v. ABDUL RAHAMAN