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June 18 andJuly 8.
SITHAMBARAPPILLAI v. VINASITAMBY et al.
D. C., Jaffna, 24,691.Bei vindicatio—A Itemative decree for delivery of articles or payment of theirvalue—Action of detinue—Civil Procedure Code, ss. 191, 320, and 321.
Where, in an action raised for specific delivery of certain articleswrongfully detained, or for payment of their value, defendant admittedpossession of some of the articles and claimed a certain sum of moneyfrom the plaintiff on a separate account, and the Court decreed that defen-dant do return to the plaintiff the articles admitted by him, or pay plaintifftheir value, and that defendant do further pay plaintiff Rb. 25'50, beingthe difference between the value of certain articles claimed by plaintiffand the amount found to be due by plaintiff to defendant—
Held, that such a decree was unworkable and irregular.
Held, also, that in an action ret vindicatio for recovery of specificmovable property, an alternative decree for payment of its value is bad.
The English action of detinue is inconsistent with sections 320 and321 of the Civil Procedure Code, and section 191 does not authorize thealternative form of decree entered.
f | ''HE plaintiff complained that certain jewels and other goods-*■ belonging to the estate of his deceased wife, specificallydescribed and valued in the schedule annexed to the plaint, werewrongfully detained by the defendants, and he prayed that “ the“defendants be decreed to restore and deliver to the plaintiff, as“ administrator of his deceased wife, the several jewellery, goods,“ and chattels declared in the schedule marked A, or to pay the“plaintiff, as such administrator, the sum of Rs. 985 if such“ possession cannot be had.”
The defendants admitted plaintiff’s right to six out of the nineteenjewels named in the plaint, and claimed payment of Rs. 165, beingmedical and funeral expenses they had incurred on account of thedeceased.
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The District Judge found that plaintiff was entitled to receivenot only the six articles admitted by the defendants, but threeothers also, which latter were valued at Rs. 25*50. He furtherfound that defendants had made good their claim for funeralexpenses for Rs. 49*46, but not for medical expenses.
Sampayo (with him Pereira and Senathi Raja), for appellant.
Rdmanathan, S.-O. (with him Domhorst and Bawd), fordefendants respondent.
The case was argued on the merits on 18th June, 1895, andjudgment reserved.
On a subsequent day their Lordships desired to hear counsel onthe form of the decree entered by the District Judge, which ranas follows:—
It is decreed that the defendants do return to the plaintiff the followingarticles described in plaintiff’s list A, and which defendants admit they arein possession of, viz., article No. 1, tili, worth Rs. 234 ; article No. 3, a pair
of th6du, worth Rs. 50, Acor pay plaintiff the valne of each such
It is also decreed that the defendants do pay to plaintiff Rs. 25*50, thedifference between the value of articles Nos. 2, 6, and 8 described in theplaintiff’s list A, and Rs. 49*46 the funeral expenses incurred by thedefendants.
Parties will bear their own costs.
Bonser, C.J. —What authority is there for an alternative decreefor specific delivery of the articles named, or payment of theirvalue, in an action like the present, which is rei vindicatiot Sucha decree appears to be inconsistent with sections 320-322 of theCivil Procedure Code.
Sampayo referred to section 191 of the Ceylon Civil ProcedureCode and 208 of the Indian Procedure Code.
Bonser, C.J.—But there is no provision in our Code to giveeffect to section 191, whereas in the Indian Code there isprovision to give effect to section 208. It seems to me thatsection 191 and sections 320-322 of our Code are inconsistent, andthat section 191 has been inserted inadvertently.
Rdmanathan.—Thewordsofsection 191 are imperative : “when“ the action is for movable property, if the decree be for the delivery“of such property, it shall also state the amount of money to be“ paid as an alternative, if delivery cannot be had.” Plaintiff prayedfor such a decree, and the District Judge decreed accordingly. OurCourts have long been used to such alternative decrees in cases ofdetinue. In D. C., Mdtara, 33,573, decided on the 24th February,1885, Burnside. C.J., recognized such decrees. So Withers, J.,
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in C. R., Avisdwella, 4,116, Civil Minutes, 4th December, 1894.The Civil Procedure Code, section 191, simply conserved the law inexistence at the time the Code was enacted. [Bonser, C.J.—But,how will you give effect to such a decree in view of sections 320-322 ?] If the alternative decree appears on the face of the writ,the Fiscal will not enforce specific delivery in the event of theexecution-debtor refusing to deliver, but will enforce the decreefor the value of the articles as a money decree. By this meanssection 191 may be worked harmoniously with sections 320-322.
Cur. adv. mill.
8th July 1895. Bonser, C.J.—
We had this case placed in the paper for further argument withregard to the form of the decree, and after hearing the Solicitor-General and Mr. Sampayo, I am of opinion that this decree muBtbe amended by inserting the three articles of jewellery, Nos. 2, 6,and 8, in the plaintiff’s list amongst the things to be given up, andalso by ordering the plaintiff to pay the defendant the amountfound due for funeral expenses. The Judge has, for what reasonI know not, assumed that the defendant will not give up thesethree articles, and has set off their value against the funeralexpenses, giving judgment only for the balance. That is anunworkable form of decree, because, if the Fiscal seizes the articlesor the defendant gives them up, then there is no order on theplaintiff to pay the amount which the Court has found to be dueto the defendants on account of the funeral expenses. Moreover,the words “ or pay the plaintiff the value of each article ” must bestruck out, for this is an action for the recovery of specific mov-able property, and sections 320 and 321 of the Civil Procedure Codelay down clearly what is to be done under such a decree. Adifficulty has been raised by the provision of section 191 of theCivil Procedure Code that “ when the action is for movable pro-“ perty, if the decree be for the delivery of such property, it shall“ also state the amount of money to be paid as an alternative, if“ delivery cannot be had,” which is apparently inconsistent withthe provisions of sections 320 and 321, but, in my opinion, whateversection 191 means, it does not authorize Buch a decree as was madein this case. The decree follows the form of judgment in the oldEnglish action of detinue, which gave the person detaining thegoods the option of giving them up or keeping them on payingtheir value. That was a very imperfect form of relief, and it waBfound necessary to amend it subsequently by the Common LawProcedure Act. It was suggested by the Solicitor-General thatthe effect of section 191 is to recognize and approve the introduc-tion into the colony of the English action of detinue ; but the words
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of that section are quite insufficient for that purpose ; it does not 1895.say that the decree is to state the amount of money which is to be bo»seb”cjpaid as an alternative if the defendant declines to give np thethings and wishes to keep them. It is the amount to be paid ifdelivery cannot be had, i.e., if the Fiscal under his warrant iBunable to get the things back, if they have gone out of his juris-diction, or have ceased to exist, or there is any other equally validreason. These words lend no colour to the suggestion that thedefendant is at liberty to say, “ I will keep the things, and you“ cannot take them from me if 1 submit to pay the amount found“ due.” So, whatever be the effect of section 191, it, in my opinion,does not justify the decree made in this case.
The decree should be amended in the way I have pointed out,leaving it to be executed in the manner pointed out by sections320, 321, and 322 of the Civil Procedure Code.
At present it is unnecessary to determine what is the effect ofthe valuation ordered to be made under section 191. If section191 is inconsistent with section 322, the latter is later, and mustgovern. But that question will only arise when the decree isexecuted, and the delivery of the goods cannot be effected.
Browne, A.J., agreed.
[See Sheik Ali v. Carimjee Jafferjee, reported below.]
SITHAMBARAPPILLAI v. VINASITAMBY et al