022-SLLR-SLLR-1999-V-1-ABEYSINGHE-v.-COMMERCIAL-BANK-OF-CEYLON.pdf
192
Sri Lanka Law Reports
[1999] 1 Sri LR.
ABEYSINGHE
v.
COMMERCIAL BANK OF CEYLON
COURT OF APPEALDE SILVA, J„
WEERASURIYA, J.
A. NO. 972/97
C. COLOMBO NO. 8272/MSEPTEMBER 30. 1998
Civil Procedure Code – S. 218 (n), 226, 329 Consent judgment-default – Seizureof residential house – ignorance of the law is not an excuse.
*
The plaintiff-respondent Bank instituted action for the recovery of moneys due toit. The petitioner agreed for a settlement and consent judgment was entered; interms of same, the petitioner agreed to pay the amounts due in instalments andfurther agreed that on default writ would be issued without notice.
The petitioner defaulted and the respondent applied for writ of execution and Courtallowed same; residential property was seized, and court ordered a sale of thesaid property. Prior to the sale, the petitioner filed an application under s. 218(n) CPC – stating that the property that was seized is the sole residential houseof the petitioner. This application was dismissed after inquiry.
The appeal lodged was rejected, and the application to the Court of Appealto reinstate the appeal was disallowed. Special leave was refused by theSupreme Court.
Thereafter the petitioner moved in Revision.
Held:
The contention of the petitioner that the appeal lodged was misconceivedand is therefore 'no appeal at all' in law cannot be urged as he shouldnot be excused for his ignorance of the law. He must take theconsequences of his action.
The submission that in terms of s. 226 CPC before the property is seizedthe Fiscal must make a demand from the debtor cannot be sustained; itmust be taken up in the same proceedings at the District Court itself.
CA
Abeysinghe v. Commercial Bank of Ceylon (de Silva, J.)193
Per de Silva, J.
“Failure of the Fiscal to demand payment does not render a sale a nullity,where the decree is entered as a result of a consent judgment and wherethe defendant agrees to allow the Writ to be issued without notice to him,if he fails to carry out his undertaking to Court."
Delay of 18 months is fatal.
APPLICATION in Revision from the Order of the District Court of Colombo.
Cases referred to:
Rustom v. Hapangama – (1978-79) 1 SLR 352.
Sarkin v. James Fernando – 63 NLR 34.
D. P. Mendis with Bandula Wellala for defendant-petitioner.
S. A. Parathalingam, PC with Chandana Liyanapatabendi for plaintiff-respondent.
Cur. adv. vult.
December 12, 1998.
DE SILVA, J.
This is an application seeking to revise the order of the learnedDistrict Judge dated 27th of June, 1996, wherein the District Judgerefused to set aside the order for seizure and sale.
The facts of this case are briefly as follows. The plaintiff-respondentBank (hereinafter referred to as the respondent) instituted action inDistrict Court bearing numbers 8272/M and 8273/M against thedefendant-petitioner (hereinafter referred to as the petitioner) for therecovery of moneys due on the banking facilities provided to thesaid petitioner.
The petitioner filed answers in both cases denying liability.However, at the trial on the 20th of August, 1991, petitioner agreedfor a settlement and consent judgments were entered in both cases.
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In terms of the said consent judgment, petitioner agreed to paythe amounts due to the respondent in instalments and further agreedthat in the event of his failure to pay accordingly, writ to be issuedwithout notice to the petitioner.
The petitioner defaulted and the respondent applied for writ ofexecution and the District Court allowed the same. In execution ofthe said writ the property at No. 41, Samagi Mawatha, Ratmalana,belonging to the petitioner was seized and the Court ordered the saleof the said property.
Prior to the said sale, the petitioner filed an application in the DistrictCourt stating that the said property at No. 41, Samagi Mawatha,Ratmalana, is not liable to be sold in terms of section 218 (n) of theCivil Procedure Code as the property is the sole residential houseof the petitioner.
At the inquiry the petitioner gave evidence and marked severaldocuments in support of this contention. In the course of the evidenceit was revealed that the petitioner had another residential house atMatara too and the learned District Judge on 27.06.1996 dismissedthe application made by the petitioner.
Aggrieved by the said order, the petitioner preferred an appealbearing No. CA/351/96/7 to the Court of Appeal and by order dated07.10.1996 the Court of Appeal rejected this appeal.
Thereafter the petitioner made an application bearingNo. CA/351/96/7 to the Court of Appeal to reinstate the appeal. Thisapplication too was disallowed by the Court of Appeal.
The petitioner sought special leave to appeal to the SupremeCourt and the Supreme Court refused to grant special leave and theapplication was dismissed.
Consequent to this dismissal the present revision application wasfiled by the petitioner in this court on 8th of December, 1997, to setaside the same order of the District Judge made on 27.06.1997.
CAAbeysinghe v. Commercial Bank of Ceylon (de Silva, J.)195
At the hearing of this application the respondent raised a preliminaryobjection on the ground of jurisdiction. It was submitted that thepetitioner having failed in his previous appeals to the Court of Appealand to the Supreme Court has no right to invoke the jurisdiction byway of revision again in the Court of Appeal as the matter is nowfinally decided by the Supreme Court.
Counsel for the petitioner contended that the order made on the27th of June, 1996, in terms of section 329 of the Civil ProcedureCode was not an appealable order and therefore the petitioner couldnot have filed an appeal but only an application for leave to appealand/or Revision. Hence the appeal he preferred to Court of Appealis no appeal at all in law. Counsel invited this Court to treat the earlierappeal preferred by the petitioner to Court of Appeal as a nullity.
It is to be noted that the petitioner cannot be heard to say thathe should be excused for his ignorance of the law. The petitionerhad taken certain steps to vindicate his rights. In the circumstancehe must take the consequences of his actions.
Counsel for the respondent also raised the question that thepetitioner has not shown any exceptional circumstances to invoke theextraordinary revisionary jurisdiction and relied on the decision in thecase of Rustom v. Hapangamaw. Mr. Mendis contended that the ordermade by the District Judge is "ex facie" wrong and therefore that itselfis an exceptional circumstance to invoke the revisionary jurisdiction.We agree with the submission of Mr. Mendis on this point. However,the question is whether the order in the instant case is ex facie wrong.It was the submission of counsel that in terms of section 226 of theCivil Procedure Code before the property is seized the Fiscal mustmake a demand from the debtor to pay the amount of the writ. Reliancewas placed on the judgment of Basnayake, CJ. in Sarlin v. JamesFemandd2> where it was held that the requirement of section 226 (1)of Civil Procedure Code is imperative.
On a careful consideration of the judgment of Chief JusticeBasnayake referred to above it is clear that for this objection to besustained it must be taken up in the same proceedings, namely atthe District Court itself.
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In the instant case the judgment debtor has not chosen to challengethe legality of the Fiscal's action in the District Court. This objectionhas not been taken up in the very action in which execution had beenlevied. Therefore he is precluded from raising the matter by way ofAppeal/Revision or in any other proceedings. The order made by thelearned Judge is not 'ex facie' wrong.
Another interesting matter to be considered is whether theprotection given in 226 (1) is applicable where the decree is enteredas a result of a consent judgment and where the defendant agreesto allow the writ to be issued without notice to him if he fails to carryout his undertaking to Court. In my view in such circumstances failureof the Fiscal to demand payment of the amount of the writ does notrender a sale a nullity to enable the defaulter to attack the sale onthat ground.
In any event the order against which revision is sought had beendelivered on 27.06.1996. But the petitioner has filed this applicationonly on 08.12.1997 which is one and a half years after the deliveryof this order. There are no averments contained in the petition andaffidavit filed by the petitioner, explaining the delay in filing thisrevision application. On this ground too the present applicationshould fail.
For the above reasons the application of the petitioner is refusedand the application is dismissed with costs.
WEERASURIYA, J. – I agree.Application dismissed.
Note by Editor :
The Supreme Court on 8.3.99 refused special leave to the Supreme Court inSC SPLA 41/99.