044-NLR-NLR-V-10-IDROOS-LEBBE-v.-TAMBY-MARICAR.pdf
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1907.
June 12.
Present: Mr. Justice Middleton and Mr. Justice Grenier.
IDROOS LEBBE-o. TAMBY MARICAR.
D. C.t Puttalam, 1,513.
Several judgment-debtors—Assignment of judgment to one by judgment*creditor—Execution—Satisfactionof decree bypayment—Gontn*
button—Civil Procedure Code, s. 339.
Judgment on a money bond baying been entered again&t twodefendants, one of them took an assignment of the decree from thejudgment-creditor, end, withnoticetotheother defendant, obtained
an order of Court substituting himself as plaintiff, issued writ, andseized and sold the property of the other defendant. On an appli-• cation made by the other defendant to have the sale set aside:
Held, also,that where theCourthasnojurisdiction at all,consent
under section 339 of the Code to execute the decree.
Held, also,that where theCourthasnojurisdiction at all,consent
of parties cannot confer such jurisdiction.
MiddletonJ.—The objectoftheoriginal decree wasfulfilled
by payment of one of the persons ordered to pay to the plaintiff,and the decree in one sense came to an end. The bond merged inthe decree and the decree* was satisfied by payment by one of theco-obligors liable on the decree. The only remedy is an action forcontribution on the assignment—an entirely new right of action.
A
PPEAL from an order of the District Judge (R. N. Thaine, Esq.)
setting aside a sale. The material facts and arguments
appear in the judgment.
W. Pereira, K. G. S.-G. (Elliott with him), for the substitutedplaintiff, appellant.
if. J. C. Pereira (G. E. Ghitty with him), for the defendant, res-pondent..
Gut adv. tmif.
12th June,. 1907. Middleton J.—
The original plaintiff in this action obtained a judgment on amoney bond against two “defendants jointly and severally, thesecond defendant being a surety on the bond for the first defendant.The second defendant paid the plaintiff the whole amount due andobtained on assignment of the decree in his favour from the plaintiffThe second defendant then, with notice to the first l( defendant,"obtained an order of the Court substituting himself* as plaintiff,issued a writ, and seized certain property of the first defendant,which was? sold and the proceeds paid into Court, but the sale wasnot confirmed by the Court. The first defendant then moved toset aside the sale on the ground of material irregularity undersection 282 of the Civil Procedure Code, and on the further ground
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that the sale was void under the second proviso to section 339 of theCivil Procedure Code, which says that where a decree against severalpersons has been transferred to one of them, it shall not be executedagainst the others.
The learned District Judge, who has delivered a judgment com-mendable both in reasoning and lucidity, held—and his finding isnot disputed on this point—that there was no material irregularityunder section 282, but set aside the sale on the ground that, thewrit being illegally issued, the sale was void, basing his judgmenton Palaniappa Ghetty v. Samsadeen1 and a case reported at page230 of Sutherland's Weekly Reporter.
The second defendant appeals against this order, first on theground that the proviso to section 339 lays down the procedure tobe followed and does not enact substantive law, and that the ordersubstituting second defendant as plain tiff having been made interpartes without appeal by the first defendant shows that he waivedhis rights under the proviso to section 339, and was therefore nowestopped from disputing the legality of the writ.
Sections 53 and 756 were quoted as showing certain matters ofprocedure which might be waived, and the case reported in 3 Bala-singham, p. 47, was relied on by the learned Solicitor-General assupporting his argument.
The observations of Lascelles A.C.J. in 9 N. L. R. 344 on thejudgment of the Privy Council in Rewa Mahton v. Ram KishenSingh,2 to the effect that a purchaser who buys at a Fiscal's saleunder a decree of a competent. Court is not bound to assure himselfthat the proceedings on which the judgment is based are free fromerror in law»or in fact, was also relied on. With that I perfectlyagree, and I doubt if this side had been confirmed by the Court undersection 283 to the purchaser whether it would not have been too lateto raise the objection. The purchaser is, I understand, a party tothese proceedings, but has not appealed, a fact which may be attri-butable as much to the desire to avoid further costs and trouble inthe matter as to acquiescence in the order appealed against.
The question seems to be whether the proviso to section 339 is• substantive law or procedure. If it is a matter of procedure, it is-contended that the first defendant might and did waive the proviso-» as to execution by one against other co-obligors in section 339 byassenting to the second defendant's being substituted as plaintiff.
Sir Frederick Pollock in his introduction to the Encyclopedia ofthe Laws of England, vol. /., p. 4, says: “ The law of duties, rights,and remedied, together with the needful auxiliary rules, is often"
called Substantive Law by modern writers..The rules which
fix the manner and form of administering justice are called Rules ofProcedure or Adjective Law. This appears to me to be an aptdescription and distinction between the two classes, and I feel boundl
* (1905) 8 N. L. R. 325.* (1886) L L. R, 14 C<rf. 18.
1907.
June 12.
Middleton
J.
17-
1907.
June 12.
Mxddlbtoh
J.
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to bold that a proviso, even though it may be included in what wasintended as a Code of Procedure, which imperatively directs that,where a decree against several persons has been transferred to oneof them, it shall not be executed against the others, is a substantiveenactment defining the rights of the so-obligors under the judgment,and not a rule which fixes the manner and form of administeringthe law.
The learned Solicitor-General has suggested that the reason forthe proviso is to prevent confusion, but in my opinion the reason isto be found in the judgments of Peacock C.J. and Phear J. in thecase reported in Sutherland*s Weekly Reporter.
The object of the original decree was fulfilled by payment of oneof the persons ordered to pay to the plaintiff, and the decree in onesense came to an end.
The bond merged in the decree, and the decree was satisfied bypayment by one of the co-obligors liable on the decree.
His only remedy is an action for contribution on his assignment—an entirely new right of action.
The case is different from that of an outsider who does not satisfythe judgment by obtaining an assignment of the plaintiff’s rightsunder it, because he was not liable under it; the outsider, therefore,can be substituted for the plaintiff and proceed to execute theprocess, as Phear J. puts it, provided for the purpose of securingobedience to the order.
In/ my judgment therefore the proviso to section 339 is an enact-ment of substantive law.
It has been held in the case of Hewitson v. Fabre1 that theservice of a writ out of the jurisdiction instead of notice of the writ,as required by Order ii., rule 6, is a nullity, and the order of serviceand all subsequent proceedings in the action were set aside afterjudgment had been signed in default of appearance and after pro-ceedings had been taken on the judgment in the Foreign Court. Noconsent or waiver by the parties either can give jurisdiction in anycase where the Court has no jurisdiction at all (per Jervis C.J. inWellesley v. Withers,2
It is, however, here admitted that if this be an enactment of sub-stantive law, it could not have been waived by the first defendant.
Moreover, the debt in the decree having been satisfied beforeexecution, the sale ought not to be confirmed under section 283.
I think, therefore, that the order of the District Judge must stand,and the appeal be dismissed with costs.
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Grenieb J.—I entirely agree. The proviso to section 339 is a
matter of substantive law, and it was admitted by appellant’scounsel that, if it were so, it cannot be waived.
Appeal dismissed.
i (1889) 21 Q. B. D. 6.2 (1885) 4 E. & B. 754.