CAHEK.ERATNE J.—Silva v. Kavanihamy.
1948Present: Canekeratne and Dias JJ.
SILVA et al., Appellants, and KAVANIHAMY et al.,Respondents.
S. G. 416—D. C. Matara, 15,477.
Civil Procedure Code—Application for -utrit more than one year after decree—Failure to serve notice on debtor—Irregularity—Section 347.
The provision as to service of notice in section 347 of the Civil Pro-cedure Code is merely directory. The failure to serve this notice isonly an irregularity.
Appeal from a judgment of the District Judge, Matara.
N. K. Choksy, K.C., with E. B. Wikramanayake, K.C., for plaintiffs,appellants.
N. E. Weerasooria, K.C., with M. H. A. Azeez and W. D. Guna-sekera, for fifth defendant, respondent.
Cur. adv. vult.
September 23, 1948. Canekeratne J.—
This is an appeal by the plaintiffs from a judgment dismissing theiraction for a declaration of title to lot B of the land called ManamalaSayakkarage Jambisse Padinchiwasitiyawatta and for certain otherrelief.
The fourth defendant, Eramanis, was at one time entitled to an un-divided one-fourth share of this land. He was indebted to one Baba-hamy, who sued him and obtained judgment in action No. 4,883 of the
CANEKERATNE J.—Silva v. ILavanihamy.5 3-
same court. On September 17, 1928, Eramanis made a gift of theproperty to his three children, the first, second and third defendants,and when this share was seized in execution of the judgment on January15, 1931, a claim was unsuccessfully preferred on their behalf. Thechildren thereafter assisted by their mother, the fifth defendant, insti-tuted an action against the judgment-creditor under section 247 ofChapter 86 of the Ceylon Legislative Enactments to obtain a declarationthat the share was not liable to be sold in execution of the judgment.On the date of trial, May 5, 1933, a settlement was arrived at betweenthe parties to this action No. 7,016 and the parties in action No.4,883,and the plaintiffs moved to withdraw their action. .The Judge in sanc-tioning the withdrawal said “ the plaintiffs are minors, but this settle-ment seems to be to their advantage and I approve it ”. In actionNo. 4,883 an order was made on the same day that the defendant wasto pay the sum due to the plaintiff by instalments of Rs. 20 per month,“ in failure of instalment writ to issue and land to be sold ”. On May 12,1933, an action for partitioning "the land was instituted and by the finaldecree, dated October 5, 1937, the first, second and third defendantswere declared the owners of lot B in lieu of the undivided intereststransferred by the father. For non-payment of costs due probablyin the partition case lot B was sold on August 1, 1938, and purchasedby one Fais who obtained conveyance 51) 2, dated November 11,1938 ;Fais on July 30, 1940, by deed No. 5D4,sold the lot to the fifth defendant,the mother of the first, second and third defendants. The debtor byabout August 20, 1934, had paid twelve instalments, and obtained fourmonths’ time on March 28, 1935, to pay some other instalments ; onSeptember 17, 1935, he obtained an order to pay by instalments ofIts. 6 a month “ till one month after final decree is entered in the partitioncase ”, in pursuance of this order he paid one instalment on October17, 1935. The judgment-creditor having died an application for substi-tution was made thereafter, and after notice to the debtor, certainpersons, one of whom was P. H. W. Edwin Singho, were substituted onJanuary 13, 1937. On November 8, 1937, an application for executionwas made to the Court by the substituted plaintiffs. It is in the formspecified in the Code, Form 42 in the Schedule and is marked 5 D 5, thenames of the plaintiffs and of the defendant are given in the applicationand the amounts paid are shown. The prayer is that the writ lyingin the above case may be executed and be issued for execution to recoverRs. 691 • 83£ with further interest. It was allowed by the Judge.Lot B was seized on November 9, 1937, and sold on November 30, 1937,and the purchaser obtained Fiscal’s conveyance P 3 dated March 15,1938. The fifth defendant appears to have had notice of this sale,for on June 2, 1938, she sent a petition to the Court praying that she andher children be allowed to stay in the premises.
-The plaintiffs’ title to lot B is prior in point of date both of sale andconveyance and his right ought to prevail unless the respondents canshow that the judgment-creditor had no right to sell lot B or that theseizure and sale were void transactions. The children of the judgment-debtor brought an action to establish their right to the land claimedby them. The order passed at the claim inquiry is made conclusive
1*J. N. A 83744 (11/48)
CANEKLERATNE J.—Silva v. Kavanihamy.
subject to the result of the action (section. 247 of the Code). The actionwas dismissed and thus the land became liable to be sold in executionof the writ. The learned Judge has held that the judgment-creditorwas entitled to seize and sell lot B and there is evidence to support thisfinding.%
A compulsory sale, i.e., sale forced upon an unwilling vendor, andbeing one ordered by the Court, conducted by its officer and subjectto its approval before being treated as final, may be attacked becausethe order on which it is founded is void or voidable. Void sales aresales which, as against the original purchaser, may without any proceed-ing to set them aside, be treated as not transferring the title of the propertyassumed to be sold. A voidable sale is one that is valid until it is setaside, there is an irregularity or some defect but the debtor may makean application or take steps to have the sale annulled. A judgment-creditor can obtain by execution only such property as belongs to thedebtor. Generally execution can be levied without leave but in certaincases leave must be obtained, the most important instances being wherea period of one year has elapsed since the judgment or order, or anychange has taken place by death or otherwise of the parties entitledor liable to execution.
Section 347 of the Code, omitting immaterial words, is as follows:—
“ In cases where there is no respondent named in the petition ofapplication for execution, if more than one year has elapsed betweenthe date of the decree and the application for its execution, the courtshall cause the petition to be served on the judgment debtor, andshall proceed thereon as if he were originally named respondent therein :“Provided that …. for execution”.
It is contended that the provisions of the section as regards service onthe judgment-debtor are imperative.
A statutory enactment passed for the purpose of enabling somethingto be done and prescribing the way in which it is to be done, may beeither what is called an absolute enactment, or a directory enactment.If an enactment is merely directory it is immaterial, so far as relates to thevalidity of the thing to be done, whether the provisions of the statuteare accurately followed or not. As Sedgwick says—Strict compliancewith all the minute details which modern statutes contain is impossible,owing to the practical inconvenience likely to result from it, and conse-quently sagacious and practical men who desire to free the law from thereproach of harshness or absurdity are tempted not to enforce strictlyall provisions contained in statutes, but to treat them as merely directory1.No universal rule can be laid down as to whether mandatory enactment ,shall be considered directory only or obligatory, with an implied nulli-fication for disobedience. It is the duty of Courts of justice to get at thereal intention of the legislature, by carefully attending to the wholescope of the statute to be construed. One must look to the subjectmatter, consider the importance of the provision and the relation of thatprovision to the general object intended to be secured by the Act a. The
Sedgwick—Statutory and Constitutional Law quoted on p. Z31 of Crains, StatuteLaw.
Graies—Statute Law (3rd Ed.), 230, 231.
CANEKERATNE J".—Silva v. Kavanihamy.
presence of the word “ shall ” is not decisive, it is a circumstance to betaken into consideration with other facts. A notice under this sectionstands upon a different footing from a summons or other notice which aparty is bound to serve and it is the Court’s duty to issue the notice1. Theprovision as to service of notice seems to me to be merely directory.It does far less harm to allow a sale held as this one was, with the opportu-nities there would be to pay the sum due on the judgment or to complainof the irregularity, to stand good, than to hold the proceedings null andvoid : so to hold would not of course, prevent the Court’s setting asidethe sale in cases where there was reason to think that prejudice had beencaused to the debtor. The non-issue of a notice to. the judgment-debtoris a material irregularity in proceedings which are anterior to the publish-ing or conduct of the sale.
It was contended by Counsel for the respondent that the omissionto give the notice was by itself sufficient to render the sale null and void.He referred to Ragunath Das v. Sundar Das Khetri 2 and Fernando v.Thambiraja3. Counsel for the appellants contended that the Indiancases were decisions under the second part of section 248 of the old IndianCode of Civil Procedure (under part “ b ” of Order 21, rule 22 of thepresent Code), and that they are not applicable to a question arisingunder section 347 of our Code. He pointed out that section 341 of ourCode makes provision for the death of the judgment debtor, the corre-sponding section of the old Indian Code being section 234, of the new Codesection 50 and that section 248 of the old Indian Code makes provisionfor two cases, (a) and (6). He referred to the case of Nanayakara v.Sulaiman 4 as a direct decision on section 347, and also to the cases ofLatiff v. Seneviratne 6 and Wijewardene v. Raymond 6. He referred to thefacts in Fernando v. Thambiraja 3 and contended that in deciding thecase the Court had failed to take notice of the fact that two of the Indiancases referred to therein (G. G. Chatterjee v. G. Dasi and Ragunath Das v.Sundar Das Khetri) were decisions on part “ b ” of the Indian section.The cases quoted by him, he said, have not been quoted at the argumentof Fernando v. Thambiraja2 and that the latter decision does not bindthis Court.
In Ragunath’s case, on January 7, 1904, a mortgagee from the lesseesobtained a decree against them. On June 22, 1904, the lessors obtaineddecree in the suit filed by them against the lessees and on July 13, 1904,they obtained thereunder an attachment against the colliery. OnSeptember 8, 1904, the lessees filed in the High Court their schedule ininsolvency giving a list of their creditors under the Insolvency Act, 1848,and upon that date an order vesting the property in question in theofficial assignee was made. On September 10, 1904, the Judge in theexecution proceedings stayed the sale therein directed until further orders.A notice was thereafter served on the official assignee but it was not anotice about substitution and he did not appear. Thereafter theyobtained an order substituting the official assignee in the place of thejudgment debtors, but this was not an order binding on them. Theproperty Was sold on March6,1905, andbought by the lessors ;it was
1 Sections 225, 347, Cap. 86, C.L.E.4(1926)28 N. L.R.314.
* A JJt. (1914) Cal. P.C. 129.6(1938)40 N. L.R.141 at p.142.
(1945) 46 N. L. R. 81.4(1937)39 N. L.R.179 at p.181.
CAiN JblK. KBATKE J.—Silva v. Ravanihamy.
confirmed on April 18, 1905, and a certificate dated April 25, 1905, wasissued to the lessors. In the course of the judgment, Lord Parkersaid—“ The judgment-debtors had no longer ” (on and after September8, 1904) “ any interest which could be sold. As laid down in O. C.Chatter j eev. G. Dasi (1892) 20 C. 370 a notice under section 248 of the Codeis necessary in order that the Court should obtain jurisdiction to sell pro-perty by way of execution as against the legal representative of a deceasedjudgment-debtor Here a change had taken place, it was very similarto a change by death, the debtor having become insolvent the creditorcould take no proceedings against him ; execution could not go as againstthe colliery because it no longer belonged to the debtor. In the presentcase there was a valid decree against the judgment-debtor, he was subjectto the jurisdiction of the Court. The Court ordering execution is the sameCourt that passed the decree not as sometimes happens in India a differentCourt. The property was seized in execution of the writ against thedefendant in 1930 and there is no evidence to show that this seizure waswithdrawn or had lapsed. The Court had jurisdiction as regards theproperty that was sold in execution in this case. Mr. Weerasooriacould not produce any decision of the Privy Council on the provisionsof the Indian Code corresponding to our section 347 or one showingthat the seizure was under a void order, but he contended that thereare decisions of Indian Courts on this point and referred us to a passagein one of the Commentaries on the Indian Code. For reasons whichwill be given hereafter I have not thought it necessary to discuss theview in this Commentary.
In the case of Perichchiappa Chetty v. Jacolyri1 to which reference wasmade by my Brother, the judgment-creditor made an application forexecution of the decree after a year had elapsed and writ was issuedwithout notice to the judgment-debtor ; the application made subse-quently by the defendant to recall the writ was refused. Lawrie J.who delivered the judgment in appeal said—“ It is proved that thedebtor failed to pay the instalment due …. The issue of writwithout notice to him was irregular but it was an irregularity which
really did him no harm” Withers J. agreed. In
N anaya Tear a v. Sulaiman2, Dalton J. came to the conclusion that theobjection of the petition not being served on the judgment-debtor was atechnical one : he declined to interfere as no injustice whatever hadbeen done to the appellant. In Fernando v. Tharnbiraja3, the defendantmade an application to have a sale held by the Fiscal set aside ; writ ofexecution had been allowed on an application made under section 347of the Code about eighteen months after the decree without the petitionbeing served on the judgment-debtor. The Court undoubtedly had theright to set aside the sale, as there was a material irregularity but ingiving judgment the learned Judge said that the sale in question wasvoid and of no effect ; the dicta about the effect of section 347 werereally not necessary for the decision of the appeal. It is probable thatif there was as full and clear an argument with reference to the previouscases as we have had, the learned Judge may have modified some of thedicta contained in the judgment. The view taken in these two eases1 (1893) 3 Ceylon Law Re-ports 91.* (1926)28 N. L. R. 314.
=> (1945) 46 N. L. R. 81
WXJEYE WAK/DENE S.P.J.—AMkarvu v. M.arikar.
(of Perichchiappa Chetty v. Jacolyn1 and. of Nanayakara v. Sulaiman 2)that a Court ought not to interfere where the party had shown noprejudice appears very reasonable. This view had stood unchallengedfor a period of little over fifty years. It is especially important for theproper and expeditious conduct of judicial business that the rules ofprocedure should be stable. Hence it is almost an invariable rule toadhere to former decisions settling the rules of procedure, when they aregenerally known and acted on, and when they have been established forsuch a length of time as to make a change injudicious, even thoughit may have become apparent that they were wrongly decided, oralthough the Court would have reached a different Conclusion if the casewere before it for the first time. A mere matter of practice, once settledby the decision of a Court of appeal and unchallenged for years, oughtnot to be disturbed except in case of “ glaring and dangerous error ”.The decisions of Indian Courts are not binding on our Courts, thoughthey are useful as showing the view of the law held by a qualified bodyof men. There is a rule of practice in Ceylon on this matter and furtherour section differs to some extent from the Indian section.
I set aside the judgment of the District Court and declare the plaintiffsentitled to the land as prayed for. The- defendants will pay the plaintiffsthe costs of the trial in the District Court and the costs of appeal.
Dias J.—I agree.
SILVA et al., Appellants. and KAVANIHAMY et al., Respondents