HOWARD C.J.—Alagappa Chettiar v. Palaniappa Chettiar.47
1940Present: Howard C. J. and Keuneman J.
ALAGAPPA CHETTIAR et al. v. PALANIAPPA CHETTIAR.
173—D. C. (Inty.) Colombo, 2,325.
Reciprocal Enforcement of Judgments Ordinance (Cap. 79)—Failure tocomply with rule 3—Defect in the affidavit—Fatal to application—CivilProcedure Code, s. 384.
Where a person who applied for the registration of a judgment in hisfavour under the Reciprocal Enforcement of Judgments Ordinancefailed to comply with the requirement of section 3 'of the rules framedunder the Ordinance regarding essential statements in the affidaviton which the application was based,—
Held, that section 3 of the rules framed under the Ordinance wasperemptory and that the defect in the affidavit could not be made go»dby an inquiry under section 384 of the Civil Procedure Code.
A PPEAL from an order of the District Judge of Colombo.
N. Nadarajah (with him S. J. V. Chelvanayagam and E. B. Wikrema-nayake), for the petitioners, appellants.
H. V. Perera, K.C. (with him C. Thiagalingam), for the respondent.March 6, 1940. Howard C.J.—
This is an appeal from an order made by the District Judge of Colombosetting aside an order made by another District Judge allowing anapplication for the registration of a judgment in favour of thf applicantgiven by the Supreme Court, Ipoh, in the Federated Malay States. Theground on which the District Judge set aside this order for registrationwas that the affidavit of the judgment-creditor supporting the applicationfor registration was defective inasmuch as it did not comply with theprovisions of section 3 of the rules made under the Reciprocal Enforce-ment of Judgments Ordinance, No. 41 of 1921. The judgment-creditorinstead of seeking the ordinary remedy in these Courts by suing hisdebtor has chosen the short cut of proceeding under the ReciprocalEnforcement of Judgments Ordinance. Having adopted this short cut,it was essential that he should comply with the special procedure which isformulated in the Ordinance and under the rules. He has not compliedwith that procedure inasmuch as the affidavit on which the applicationfor registration was based did not state that to the best of his informationand belief he was entitled to enforce the judgment and also thatthe judgment does not fall within any of. the cases in which undersection 3 (2) of the Ordinance a judgment cannot properly be orderedto be registered.
We have been asked by Counsel, for the judgment-creditor to say thatRule 8 (c), which applies to a case where an application to set aside theregistration has been made applies, and that under this section the Courtshould have conducted an inquiry and followed the procedure prescribedin Chapter 24 of the Civil Procedure Code. In this connection he refersus to the provisions of section 384 of the Civil Procedure Code which
48HOWARD C.J.—Alagappa Chettior y. Palaniappa Chettiar.
provides for such an inquiry. We are of opinion that section 3 of therules made under the Reciprocal Enforcement of Judgments Ordinanceis peremptory and even if an inquiry was held under section 384 of theCivil Procedure Code that inquiry could not supply or make good theoriginal defect in the affidavit which required certain statements to bemade by the deponent. In these circumstances we think the ordersetting aside the registration is correct. The appeal is therefore dismissedwith costs.
Keuneman J.—I agree.
ALAGAPPA CHETTIAR et al. v. PALANIAPPA CHETTIAR