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Present: Lascelles C.J. and Ennia J.
THE ATTORNEY-GENERAL v. APPUHAMY.
110—D. C. Colombo, 32,594.
Stamp duty—Application for execution of decree—Not liable to stampduty.
An application for the execution of a decree under section 234 ofthe Civil Procedure Code is not liable to stamp duty.
HIS was an appeal from the following order of the DistrictJudge of Colombo (H. A. Loos, E-sq.): —
The decree-holder in this case has applied for execution of the decreein his* favour (according to the usual practice which has obtained' inthis Court and probably in everyother Court inthisIsland sincethe
coining into operation of .“ The Civil Procedure Code, 1689 ") in theform No.-42 appearing in the second schedule to the Code.
Air thefootofform No. 42 there isa form of declaration given
totheenewthatwhat is statedin the application for execution is true
to the best of the information and belief of the applicant, who, accordingtotheformNo.x,49, would bethe partyin whose favour the decree
sought to be executed stood'.
In the present case the application for execution is signed by thedecree-holder's proctor. Section 224 of the Code permits of the appli-cationfor execution being signedby the applicantorhis proctor,so.
that, on the face of it, the present application is quite in accordancewith the requirements of section 224, and follows the' form No. 42. Theapplication, however, bears no stamp. So far as I am aware, or havebeen able to ascertain, such applications have never been stamped, butin this case the Attorney-General has moved for an order on the decree-holderto stamp the declaration made by his proctoratthe foot ofthe
application for execution of the decree in accordance with the provisionsofitem2 ofPartI.of ScheduleB to theStamp Ordinance, No. 22 of
Theproctor of the decree-holdercontends that ithasnever beenthe
practice tostamp such declaration, and furthermore, that no such
declaration is necessary or required by section 224 of the' Code, underwhich the application for execution is made. CrownCounsel Akbar,
who appeared for the Attorney-General, contended- that, according tothe form No. 42. referred to above, it was necessary that the applicationfor execution should be supported by the declaration in question, andhe relied on ' the judgment of Grenier J., reported in 2 Appeal CourtReports ISO, in supptort of that contention; but he maintained furtherthat the written application ' itself, even without the form of declarationat the foot, is in the nature of a declaration, and should accordinglybe stamped as a declaration, and in support of that contention he citedthe case of Qtteen Empress v. Bapuji Dayaram.1
1 (1886) I. L. R. 10 Bom. 288.
14 —-J. V. A 99413 (8/50)
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He relied oa -the latter case on the assumption that section 224 of ourCode is practically identical withsection235ofthe IndianCode of
Civil Procedure-; but the tiro sections differ on a material point, forwhile the IndianCode requires the application for executionto be
vorified by the applicant or by some other person proved to the satis-faction of the Court to be acquainted with the facts of the case, ourCode contains no such requirement.
The ruling in Queen Empress v. Bapuji Day a r a in i was bused on thefactthatthe applicationfor' executionunder the Indian Codemustbe
verified by the applicant, so thatI donotthink that thatdecision
canbe regarded as anauthorityinsupport of the contentionthatthe
application for execution is in itself a " declaration ” such as is con-templatedby the StampOrdinance.Section . 224 of our Codedoesnot
indicate in any way that the written application for execution shouldbeverifiedin any way, and I cannotbelievethatthe Legislature intended
that the form No. 42 should bethe mediumofenacting animportant
provision, which might so much more forcibly and appropriately havebeen embodied in section 224. It is an important provision, in that ifevery application for execution is to be verified by a declaration beingattached thereto in support of the truth of its contents, the revenuewould benefittoa veryconsiderable extent,forsuchdeclarations
must, in accordance with the provisions of the Stamp Ordinance, beara stamp of Ee. 1.
I am convinced thatthere was no intention that such applications
should besupported bya declarationas tothetruth of their contents.
Itwassuggested thatthe rulingofGrenier J., referred toabove, is
an authority in favour of that contention,butinthat case thequestion
before the Court was as to whether or not an application for executionshould bebypetition, andwhetherthe petitionshouldbestamped,
and it was held that it should not be by petition, but in accordancew'ith theformNo.42; thequestionof whetheror nottheformof
declaration atthefoot of that form was necessaryundersection 224
of our Code did not arise and was not decided.
Under section224the applicationcanbe madeby theproctorofthe
party applyingforexecution, andif,as contended onbehalfofthe
Attorney-General,theapplication for execution,even withontthe
declaration atthe foot, am.ount toadeclarationwhichrequiredtobe
stamped, the proctorof thepartyapplying for execution would
beliableto a criminalprosecution, for example,for. setting out in the
applicationthatnoadjustment of thedecree hadbeen made,whenas
a matter of fact an adjustment had been made between the parties, andthe fact of such adjustment had been concealed from his proctor by theparty applyingforexecution.I cannot think that suchastateof
affairs was ever contemplatedor intended by theLegislature. It is
clear that iftheapplication for execution wasin itself regarded as a
declaration requiring the affixing of a stamp thereto, there would nothave been theformof declaration attached to formNo. 42; and as Iam
ofopinion that section.224 of the Codedoesnot require that there
should be anyformof declarationattached to anapplicationfor
execution, it appears to methat the applicationof the Attorney
General mustbedisallowedwith costs, and Imakeorderaccordingly.
‘ (1886) /. L. R. 10 Bom. 288.
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Bawa, E.C.t 8.-0., for the Attorney-General, appellant.—Anapplication for writ under section 224 of the Civil Procedure Codeshould be by petition (CkeUappa Chetty v. Kandyah1). Silva v.Singho 2 did not over-rule Chellappa Chetty v. Kandyah 1 on this point.
In Soysa v. Manuel3 the Supreme Court did not expressly holdthat the application for writ need not be stamped. That judgmentheld .that form No. 42 should be adopted, and that a petition wasUnnecessary. Even if an application for writ is not a petition, it is adeclaration which has to be stamped under Part I. of the scheduleto the Stamp Ordinance. See Queen Empress v. Bapuji Dayaram,4 5Counsel also referred to Muttiah Chetty v. Meera hebbe Marikar.s
W. Jayewardene, for the respondent.—Part II. of the Scheduleis exhaustive as to the stamp duty leviable on law proceedings.Part I. cannot be used to supplement Part II. as to stamp dutyleviable on law proceedings.
.If there is any doubt as to whether the application is subject tostamp duty, the Stamp Ordinance should be construed in favour ofan exemption; a tax cannot be imposed without clear and expresswords for that purpose. Gurr v. Scudds;6 Philips v. Morrison.7
The practice of Courts for twenty years is to levy no stamp dutyon applications for writ. A cixrsus curia should not be lightlydisturbed. Cantlay v. Elkington.*
A declaration is not essential for an application for writ undersection 224. The proctor merely assists the. Court in making thedeclaration; the proctor may omit the declaration if he likes to do so. *
An instrument exempt from duty as to its leading object is notrendered liable to duty by anything which it contains which isaccessory to that object. Walker v. Giles;2 Cury v. Edensor.10 Thedeclaration is accessory to the application. It has been held thatthe application need not be stamped. Soysa v. Manuel.3 Thedeclaration therefore is also exempt from stamp duty.
The Indian law is different, – and the Indian case cited does notapply-
The application for writ is not a petition. When a petition isto be used in proceedings, it is so distinctly stated in the Code.
Bawa, K.G., in. reply.—If the stamp duty has been so longevaded, that is no ground for holding that the application has notto be 'stamped. It does not- matter whether the Code requires adeclaration or not: if as a matter of fact a declaration is made, it
has to be stamped. The words ofall declarations have to be stamped.
1(1905) 2 Bal. 61.
2(1907) 10 N. L. B. 312.
a (1907) 2 A. C. B. 130.
* (1886) 10 Bom. 289.
5 (1892) 1 S. C. B. 244.
the Ordinance are unambiguous:Cur. adv. vult
13 L. J. Ex. 212,.
« (1906) 9 N. L. B. 168.
® 18 L. Jt C. P. 323.
3 T. B. 524.
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. 1918* September 12, 1912. Lascelles C.J.—
The This appeal" raises the question whether an application for theCnuraTr. ' execution of a decree under section 224 of the Civil Procedure CodeAppuhamy is liable to stamp duty. The case for the Crown has been presentedto Us in two forms. It is first of all suggested that the applicationsin question are equivalent to petitions, and are stampable underPart II. of the Stamp Ordinance of 1909. It has also been suggestedthat these applications are stampable under Part I. as “ affidavits,affirmations, or declarations made for the purpose of being filed,read, or used in any Court of Justice in this Island, not otherwiseprovided for in Part II.” With regard to the first contention,namely, that the application is stampable as a petition, the case iscovered by authority. In the case of Soysa v. Manuel,1 Mr. JusticeGrenier held that an application for a writ of execution made undersection 224 of the Civil Procedure Code is not by petition bearinga stamp on it. With the reasons on which the judgment of theDistrict Judge is founded I entirely agree. It was there held thatthe term “ application ” and “ petition ” are not equivalent; andalthough every petition to a Court is in one sense of the word anapplication, yet a petition denotes a well-known form of document.Both on the authority of this decision and on principle I am of opinionthat these applications cannot be deemed to be petitions so as tobe stampable in Part II. of the Stamp Ordinance. Further, thelanguage used in Part II. of the schedule relating to proceedings in .the District Court makes it still more doubtful whether, quite apartfrom the form of the document, an application of this nature couldbe considered to be a petition for the purposes of stamp duty. Theschedule provides stamps for “ plaint, answer, replication, petition,or any other pleading.” Here the collection of the word suggests,if it does not actually demonstrate, that the petition there referredto is a petition in the nature of a pleading, and not a petition in thenature of an application under section 224. Then the question ariseswhether this declaration is to be treated stampable under Part I.In this connection it is important to consider the general scheme ofSchedule B of the Stamp Ordinance. It is divided into five parts.The first of them relates to the duties on certain instruments thatare named in the heading of the schedule, and on other instrumentsand matters and things “ not falling under any of the followingheads.” Of the following beads, Part II. contains the duties of lawproceedings in the Supreme Court, District Courts, Courts ofBequests, and Police Courts respectively. Part III. relates to theduties on testamentary and similar proceedings. Part TV. relatesto the duties in respect of service of process in District Courts.Part V. is miscellaneous. Now, bearing in mind the arrangementof the schedule, and also having regard to the very exhaustiveenumeration of the instruments that are liable to stamp duty on
i (1907) 9 A. C. R. 130.
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law proceedings, I cannot avoid the conclusion that it was theintention of the Legislature to make these tables' of duties exhaustive,and not to allow them to be supplemented by recourse to the dutiesnamed in Part I. It is strongly in favour of the contention of therespondent that, ever since the passing of the Civil Procedure Code,these applications have been regarded as not liable to stamp duty;further, it is obvious that, if the enumeration of stampable instru-ments in Part II. is allowed to be supplemented by Part IM veryserious anomalies and difficulties would arise, for Part II. provides ascale of duty graduated according to the value of the subject-matterof the action, whilst Part I., for the most part, prescribes fixed duties.One of these anomalies was pointed out in argument. If thesedeclarations are stampable under Part I., the stamp duty wouldbe Be. 1 on the declaration. But in Courts of Bequests, in thelower scale of proceedings, the ordinary duty on each instrument,is only 50 cents. So that the result of the contention for theCrown, if it were successful, would be to levy on these declara-tions double the duty which is levied on ordinary instrumentsin the class of actions to which I have referred. There is one otherconsideration to which I ought to refer. Section 224 does notrequire any declaration or any verification of the particulars whichare to be stated in the application. It is true that in form 42 adeclaration is appended to the form. The reason, I venture tosuggest, is that the form was borrowed from the 'Indian ProcedureCode without the necessary annotation to section 224. Be that asit may, section 224 does not impose on the applicant the duty ofattesting the statement required to be made. This obligation, evenif it.is an obligation, to attest the statement at all restsi solely on theform in the schedule. I think, for the reasons that* I have stated, itis clear that the application is not stampable as a declaration underPart I. of the schedule. I think the judgment of the District Judgeis right, and I would dismiss the appeal with cosls.
Ennis J.—I concur.
THE ATTORNEY – GENERAL v. APPUHAMY