037-NLR-NLR-V-57-PIUARATNE-THERO-Appellant-and-RAHIM-Respondent.pdf
Present: Swan, J., and Sansoni, J.PIYARATXE THERO, Appellant, and RAHIM, RespondentS.C. 140—D. C. Kandy 324f 31. S.
Execution—Decree to pay money—“ Subsequent order directing the payment of moneyto be made at a specified date ”—Civil Procedure Code. s. 337 (1) (b).
Judgment was entered in 1039 for the payment of a sum of Hs. 69G. In1940 on application for execution was made and, on writ being issued, a sumof Rs. SO only was recovered. In 1943 a subsequent application for execution,was mado and on February 7, 1944, tho Court allowed tho defendant to paytho decreed amount in monthly instalments of Rs. 20 and ordered that in caseof default tho writ could bo reissued. Plaintiff applied for execution sovcraltimes thereafter but nothing was recovered from tho defendant. On July 17.1903, a similar application was made by tho plaintiff and, on being noticed,tho defondant objected to tho reissue of tho writ on the ground that over lOyears hnd expired since tho date of the decree.
■ .. HtlJ, llmt (lie order of febmnry. 1; 1944, was not a “ subsequent onlcr
, . directing the payment of money to bo mudo ot ft specified dote ” witluu tliomoaning of section 337 (I) (ft) of the Civil Procedure Code.. At most it amountedto n concession grunted to tlio defendant ns to the manner of settling the amountlie had been decreed to priy. Tlio Application of July 17, 1953, ivns therefnrotime-bnrred nnd should be refused. * – –• ■ '
yiuthu Kamcn Chrlly v. .1lohatnmadu (1919) 21 X. L. It. 97, followed. _
. Mrenatrhi Atrha v. Palattiappa Cl.cttiar (1941) 42 X. I,. It. 333, distinguished.
PPIvAL from a judgment of the District. Court, Kaiwly.
P. Sninntitahnn, for tlie defendant appellant.
M.Retfreb. fur the plaintiff respondent.
Cur. ado. raft.
November .'10, 1954. S.-vxsoxr, J.—
In this case a judgment by default was entered against the defendanton 27th Xovembcr, 1920, for the payment of a sum of Its. 096 withfurther interest and costs. On an application for execution made inJ 940, writ was issued and a .sum of Rs. SO was recovered from thodefendant on that occasion. In 1943 a subsequent application forexecution was made and tho defendant was noticed. Eventually on7th February, 1944, the Court allowed the defendant to pay the decreedamount in monthly instalments of Rs. 20 commencing from 1st November,11)44, and ordered that in case of default, the writ may be reissued.The defendant apparently made default in paying the instalments andthe plaintiff applied for execution several times thereafter but nothingwas recovered from the defendant. On 17th July, 1953, a similar appli-cation was made by the plaintiff and on being noticed the defendantobjec ted to the reissue of. tho writ on the ground that over 10 years hadexpired since the date of tho decree.
After hearing Counsel appearing for the parties tlio learned AdditionalDistrict Judge allowed the plaintiff’s application on the ground that10 years had not elapsed since 7th February', 1944, when the Courtmade order allowing the defendant to pay tho decreed amount in monthlyinstalments.
The defendant has appealed and it is necessary to consider whethertho order of 7tli February, 1944, is a “ subsequent'order directing’ t.hopayment of money to bo mado at a specified date ” within the meaningof sec tion 337 (1) (6) of tho Civil Procedure Code, for if it is the period of10 years within which a subsequent application for writ may-be grantedcommences to run only from tho date of default in making thopayment. It seems to me that the matter is concluded by tlio judgment,of Schneider, A. J., and dcSampayo, J., in Jftif/u liftmen Chdiy v. Moham-mad it h In that ease a mortgage decree was entered in 1902. In 1911
1 (1919) 21 N. L. R. 97.
;ui application for execution was made find on 2nd November, 1011, 1 ho.defendant consented to tl>e issue of writ and writ was issued. In 1011the plaintiff applied to issue writ and it- was objoctcd' that ten yearshad- expired from the date of the decree. The District Judge howovorallowed the application on the ground that the period of ten years- shouldhe lockoned from the order of 2nd Novembei, 1011, and not from thedate of the decree of 1902 because the ordei was a “ subsequent order ”such as is contemplated by section 307 (1) (b). Schneider, A. J., insetting aside the order of the District Judge said : “ The subsequentorder contemplated in section 337 (6) is one which may bo made underthe provisions of sections 320, 322, 331 and 335 of the Code, for therecovery by execution of a sum of money as damages in default of com-pliance with the substantial decree, cither to deliver movable propertyor to clo or abstain from doing some specified act Following thatdecision I would hold that the order of 7th February, J944, is not. a'■ subsequent order ”. At most it amounts to a concession granted tothe defendant as to the manner of settling the amount lie had beendecreed to pay.
It- cannot be contended that the decree of 27th November, 1939, wassuperseded by a new decree on 7th February, 1944. Such a position arose,in Meenalchi Aleluj r. Palauiappa Cfielliar 1 but tiic facts of that casearc widely different from thoso of the present- case, for they clearlyindicated that the parties substituted a new decree for the decreeoriginally entered : they even specifically agreed that the date of thedecree was to be reckoned as from the date of the new decree. Theplaintiff’s Proctor does not seem to have taken the view that a new decreecame-into being on 7th February, 1944, because in the application forexecution the date of the decree sought to be executed appeared as27th November. 1939. The order of 7th February, 1944, is nothing more. than an intermediate arrangement for the payment- of the original decree!.Although Keitiieman. ■)., in his judgment in Afccmitclny .-itchy v. Palau i-f/ppa CheUiar (supra) said that the agicement on which the new decreewas entered in that case c-ciild he logarded as a ''subsequent order”within section 337 (1) (h). J think that itiling must be considered in thelight of that agreement. The learned .Judge makes no reference to thejudgment in Aliitlu Hamm Ohefty v. Alohaunnarltt (supra) and if there isany conflict between the judgments on the meaning of the words " sub-sequent order” 1 would follow Die judgment of Sc-hiieidor. A. .).. which,as far as I know, has never boon dissented from.
For, those reasons it seems clear that the application for executionmade by the plaintiff on 17tl> July, 1953, was time-barred and shouldJmvo been refused. This appeal is-therefore allowed with costs.
Swan', J.—1 agree.
. i jyutil afIran tl.
1 {1041) 42 A. L. J.