ANDRIS APPU v. KOLANDE ASARI et al

055-NLR-NLR-V-19-ANDRIS-APPU-v.-KOLANDE-ASARI-et-al.pdf


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[Fuix Bench.]
Present: Wood Renton C.J. and Ennis and De Sampayo JJ.ANDRIS AP3?U v. KOLANDE ASARI et ah347—C. R. Badulla, 242.
Re-issue ofunit—Stamp duty—Is freshseizure necessary*—Maywrit be
extended and re-issued on the application of the Fiscal after theperiod fixed for return of writ expired.
Thereis nothing inthe CivilProcedure Code to preventthe re-issue ofa writ inthe sense of itsbeingissued again forexecution
or further execution.
[Ennis J.—A writ cannot be re-issued, but there is no objectionto the term “ re-issue ” to describe a second or subsequent writ.]
A second or subsequent writ is not liable to duty if it comeswithinthe exemptionindicatedin Schedule 2 of theStamp
Ordinance.
Wherethe Fiscalapplied to Court oneday after the date fixed
for thereturn of thewrit forextension of time to enablehim to
advertisethe saleof the propertyseized and the Courtextended
the time,—
Held, that a new seizure was not necessary.
Gurusamy Pulle v. Meera Lebbe et al.1 over-ruled.
W
RIT in this case was issued on October 27, 1915, and was madereturnable on December 31, 1915- The Fiscal on December
29, 1915, returned the writ to Court unexecuted, as he had beenunable to find any property of the defendants. On the applicationof the plaintiff the writ was re-issued on February 2, 1916, returnableon March 15, 1916. On the re-issued writ the property in questionwas seized, but on March 16 the Fiscal returned the writ and appliedfor extension of time to enable him to advertise the sale of theproperty seized. The Court extended the time to May 15, 1916,and the sale of the property then took place. The writ was notstamped afresh on either of the occasions when it was re-issued orextended, but the Court made relevant endorsements on the back ofit. The defendants applied to Court to set aside the sale of certainimmovable property under the decree, on the grounds that the wntwas improperly re-issued and the sale was in any case bad, as therehad been no fresh seizure when the writ was extended on the lastoccasion. The Commissioner of Requests upheld the objections.The plaintiff appealed.
1916.
i (1914) 17 N. L. R. 467.
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1916.J. W. de Silva,, for the plaintiff, appellant.—The Stamp Ordinance,
AndrisAppu Schedule B, Part I., provides that a writ may be re-issued withoutv. Kolande fresh stamps when the writ is returned to Court with a report *thatAsan n0 property of the judgment-debtor was found. It is clear, there-fore, that the law contemplates a re-issue of a writ. In this casethe writ was returned to Court unexecuted, for the reason that noproperty of the debtor could be found. The writ could have,therefore, been re-issued without stamps (see Palaniappa Ghetty v.Sameadeen1, Mutappa Chetty v. Fernando2, Mutappa Chetty v.Fernando3).,
■ The Court may extend and re-issue a writ, even after the periodfixed for its return had expired, at the instance of the Fiscal(Attorney-General v. Ponniah>*).
When seizure is once made it continues in spite of the return ofthe writ to Court, and a second seizure on a re-issued writ is notnecessary (see Periar Garpen Chetty v. Sekappa Chetty*, Yapa-hamine v. Weerasuriya6). Counsel also referred to Jhpboo Sahoo v.Roy7, Carpen Chetty v. Silva9.
Bartholomeusz, for defendants, respondents.—The provisions ofthe Stamp Ordinance do not enact laws of procedure, but onlyprovide for payment of stamp duty. The Stamp Ordinance merelyrefers to the practice of re-issue of writs, and <Bht Preference doesnot appear in the. body of the Ordinance, but in the schedule. Itcannot be argued from this casual reference that the law providesfor the re-issue of a writ. The re-issue of a writ practically meansthe re-issue of a new writ (see Mutappa Chetty v. Fernando-).,
When a writ is issued a second time, the Fiscal must seize overagain, and cannot rely on the seizure under the first writ. In the.case of movables, for instance, the seizure is manual, and cannot besaid to continue after the period mentioned in the wilt had expired.There should clearly be a fresh seizure before sale of movables undera second writ. In principle the same rule should apply as to seizureof immovables (see Gurusamy Pulle v. Meera Lebbe et ai'J, Wijewar-dene v. Schubert10).
[De Sampayo J.—There will be a great deal of inconvenience tothe public, if with the expiry of the period mentioned in the -writ all;previous seizures and other acts are to be held to be null and void.]
The inconvenience will be avoided by the Fiscal or the execution-creditor applying for extension of time before the period mentionedin the writ has expired (see 17 N. L. R. 471).
J. W. de Silva, in reply.
Cur. adv. vult.
1 (1905) 8 N. b. R. 395.
(1906) 9 N. L. R. 150.a (1907) 10 N. L. R. 180.* (1908) 11 N. b. R. 245.s (1910) 2 Cur. b. Ft. 162.
(1914) 17 N. b. R. 183.
(1869) 11 W. R. 517.
(1900) 1 A. C: R. 112.
o (1914) 17 N. b. R. 467.(1906) 10 N. b. R. 90.
1916.
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November 15, 1916, Wood Renton C.J.—
The facts in this case have been fully stated by my brothers, andI do not propose to repeat what they have said. To the first of theAeari
points submitted to us, namely, whether a writ in execution can inany circumstances be re-issued, I would return an answer in theaffirmative. There is nothing in the Civil Procedure Code to preventthe re-issue of a writ in the sense of its being issued again for execu-tion or further execution, and Schedule B, Part 1., of the StampOrdinance. 1909.1 distinctly recognizes that this may in certaincases be done.
The second question is, whether, if a writ can in any circumstancesbe re-issued, it may be so issued without stamps. On this point Iagree with the view first stated by Wendt J. in Palantappa Chetty v.Samsadeen2 and adopted by Rascelles A.C.J., and in review* bythe Full Court in Mutappa Chetty v. Fernando4, that the provisions. of the Stamp Ordinance with regal'd to the re-issue of writs have «apurely fiscal purpose, and. cannot be read as an enactment that awrit if re-issued after having been returned into Court is a nullity,whether stamped or not.
– The third question submitted us is, " whether a seizure effectedunder one writ can be availed of ,for the purpose of another writ, ora re-issued writ, or a vwrit for the execution of which the time hasbeen extended, or is a fresh seizure necessary in any or all of suchcases." This question is one of 'great difficulty. But I have, withconsiderable hesitation, come to the conclusion that the answer toit should be that a fresh seizure.is not necessary in all oases. Inthe circumstances before us, the writ was not recalled or withdrawnin the ordinary sense of either o^ these terms, and there can be noground for saying that it was abandoned. It was held by thisCJourt in Periar Carpen Chetty v. Sekappa Chetty5—an authority t-owhich the attention of the Judges who decided the cases of Patherup-.pillai v. Karulappen6 and Gurusamy Pulle v. Meera Lebbe et al.7 doesnot seem to have been specifically directed—that an order for the re-issue of a writ is not a withdrawal of a seizure previously effected,and that even a fresh seizure under a re-issued writ does not operateagainst the continued validity of the first seizure. . I was inclinedat the argument to think that the decision of the Full Courtin Wijewardene v. Schubert8 was decisive of the question in therespondents’ favour. But a closer, examination of the report of thatcase shows that the ratio decidendi – was that the recall of the writ onthe full satisfaction of the plaintiff’s claim was in effect a removalof the seizure itself. There is undoubted force, in the observations
*i
1 No. 22 of 1909.
~*~ (1905) 8 N. L. R. 325.
;(1907) 10 N. L. R. 180.
' * (1906) 9 N. L. R. 150; at page 156.
*■ (1910) 2 Cur. L. R. 162.• (1913) 16 N. L. R. 298.
$914) 17 N. L. R. 467.
(1906) 10 N. L. R. 90.
f
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«
1916. of Pereira J. in Pathemppillai v. Kandappen1 and Gv/rustimypulleWood v’ Me era Lebbe et al.,2, that in many cases a timely application for anRknton C.J. extension of the writ, while it was still in force, would obviate anyAndris Appu hardship resulting from a declaration of the law in the sense indi-v. Kolande cated in the two cases last mentioned. But, as my brother BeAtari Sampayo has shown, there is an argument ah inconvenienti on theother side. The Fiscal might not always be able to seize the propertyuntil the writ was due to expire, and the success of the executionmight often be interrupted by claims in concurrence on the part ofcreditors who had obtained judgments, while the claim proceedingswere still in progress. Moreover, I cannot think that it could havebeen the intention of the Legislature that, on the re-issue of a writ,the Fiscal should proceed to take afresh all the steps incidentalto the original execution. The remedy against the indefinitesubsistence of a writ, the ordinary period for the execution of whichhas expired, is in the hands of the aggrieved party himself. It isopen to him to apply to the Court for a removal of the seizure.
On these grounds I would set aside the order appealed from withcosts.
Ennis J.—
This is an appeal from an order setting aside a sale in executionon the ground that the sale was invalid, as the writ under which theproperty was seized was re-issued unstamped.
The following points have been referred for the decision of theFull Court: —
Whether a writ in execution can in any circumstances be
re-issued?
If so, can it be re-issued without stamps?
Whether a seizure effected under one writ can be availed of
for the purpose of another writ (or re-issued writ), or awrit fortheexecutionofwhich the timehasbeen
extended?
The first two points can be dealt with conveniently together.The Civil Procedure Code contains no procedure for the re-issue oEwrits, but the re-issue of writs is referred to in Schedule 2 of theStamp Ordinance, No. 22 of 1909, in connection with the liabilityof suchdocumentstostamp duty.The meaning oftheterm
" re-issue " in the Stamp Ordinance has been fully considered byWendt J. in the case of Mutappa Ghetty v. Fernando. “ I cannothelp thinking thatinsubstancetheobjection involves amere
questionof names.If,after writhasonce issued, thejudgment-
creditor makes another application for execution, he is no doubt
i (1913) 16 N. L. R. 298.i 2 (1914) 17 N. L. R. 467.
3 (1906) 9 N. L. R. 150.
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t …
entitled to issue an altogether new writ. If he takes the old writ 1M6.and alters it to the present balance of debt, returnable date, &c., Emus J.and stamps it as a new writ and issues it that is called a “ re-issue,” —j-although in substance, in all but the bare paper, it is a new writ, v Kolandeand not properly a ’re-issue.’ The Stamp Ordinance of 1890 Aaari(re-enacting a provision which appears in the Stamp Ordinancesfrom No. 2 of 1848 downwards) provides that no writ whateverwhich has once been issued shall on any pretext whatever be
re-issued except in certain cases It seems dearly implied
that in these excepted cases the writ may be re-issued withoutpaying any further duty in stamps.
With these observations I am in entire accord. A re-issued writ isnot ipso facto void; it may in substance be a new writ and is liableto duty, unless issued' in circumstances in which under the StampOrdinance it is exempted. The. present case falls within the exemp-tion, and the writ (or re-issued writ) need not be stamped. I wouldaccordingly answer the first two questions as follows:—(1) A writcannot be re-issued, but there is no objection to the use of the term‘‘ re-issue ” to describe a second or subsequent writ; (2) a secondor subsequent writ is not liable to duty, if it comes within theexemption indicated in Schedule 2 of the Stamp Ordinance.
The third point is more difficult. I have already expressed anopinion on it in the case of Ourusamy Pulle v. Meera Lebbe et al.,1and after hearing further argument, I am still of opinion that theconclusion I then arrived at is right. The facts of the case are, how-ever, not quite similar. In the present case a writ in execution wasissued on October 29, 1915. It was duly returned by the Fiscal onDecember 29, 1915, with a report to the effect that no property ofthe debtor could be found. On February 2, on the application ofthe judgment-creditor, the writ was re-issued returnable on March 15.
This ” re-issue ” was in effect a new writ, and as the previous onehad been returnedunexecuted, becausenogoods ofthe debtor
could be found, itwas. properly issued(orre-issued)unstamped.
Under this writ the Fiscal seized certain property, but the returnabledate of the writ arrived before the Fiscal could sell it. The day afterthe returnable date the Fiscal returned the writ to the Court witha request for an extension of time to advertise the sale of the propertyseized. ■ The Court thereupon extended the time to May 15, 1916.
The sale set asidewas effected withintheextendedtime. The
/
Court has an inherent power to extend the time for the execution ofits own process, and had the order of extension in this case been madeon or before the returnable date, March 15, 1916, there is no doubtin my mind that the sale would have been perfectly valid. Thewrit, however, was not sent to the Court, nor was the order madetill March 15, and the question arises whether the Court could extenda time-expired writ, and if so, if the extension of the writ be regarded
• (1914) 17 N. L. R. 467.
20-
1916.
Exnxs J.
AndrisAppu
v. KolandeAtari
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a>B the issue of a new writ, whether the seizure under the time-expired writ could be availed- of without any necessity for a newseizure. In the case of Gurusamy Pulle v» Mb era, Lebbe et oil.1 aperiod of five years elapsed before the time-expired writ was re-issued. In the present case the period is not more than one day, and,further, the failure of the Court to make the order within the timeof the writ was due to the Fiscal having failed to have the mandatein Court on the returnable date; it was not due to any fault of theexecution-creditor.
The question is whether a seizure can terminate other than by awithdrawal of the seizure by an order under section 239 of theCivil Procedure Code. In India, where attachments are made bythe Court, it is clear that a seizure is made by the Fiscal, whoseauthority to hold the property is the writ of the Court, and in thecase of Wtjewardene v. Schubert,2 it, was .held that a recall of thewrit terminated the seizure, because it terminated the Fiscal’sauthority to hold. Where a writ is returned on the returnabledate and no order for extension is made, the authority of the Fiscalto hold has ceased and the seizure terminates. This is the findingin Gurusamy Pulle v. Meera Lebbe al.1
In certain circumstances it may be shown that the Court had nointention of withdrawing the Fiscal's authority when it omitted tomake an order of extension on the due date. In. Ceylon floods and.other causes may prevent a Court from sitting. In the present caseit is clear that the delay in making the order was caused by thewrit not having been returned on the due date.
By ancient practice (Turner v. London S. W. Rly. Coy.3) Courtshave power to enter orders nunc pro tunc, to prevent an unjustprejudice to a suitor by a delay unavoidably arising from an act ofthe Court. In the present case the Fiscal by a failure to bring thewrit to the Court on the proper date prevented the Court frommaking the order for extension within the. period of the writ. I. see •no reason why the order of March 16 should not be entered as fromMarch 15, especially as no third party has been shown to be pre-judiced thereby, and the parties in the case have not been shown tohave been misled or prejudiced by the order extending the operationof the writ. In this case the validity of the extension was notquestioned till the appeal was heard.
I would allow the appeal with costs, and direct the order ofMarch 16 to be entered as from March 15._ >
De Sampayo J.—
The appeal in this case came before me sitting alone, and in viewof several important points of practice which were involved in thecase, and upon which there appeared to be conflicting decisions, I
* (1914) 17 N. L. R. 467.= (1906) 10 N. L. R. 90.
3 17 Eq. Cases 661.
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referred the ease to a Bench of three Judges. The defendants, **>18.against whom a money decree had been entered, applied to have ixe Sampayoset aside a sale of certain immovable property in execution of thedecree. The writ was first issued on October 27, 1915, and was AndrisAppumade returnable on December 31, 1915. The Fiscal on December *■ Rolando29, 1915, returned the writ to Court unexecuted, as he had beenunable to find any property of the defendants for seizure and sale.
On the application of the plaintiff the writ was re-issued on February2, 1916, returnable on March 15, 1916. On this re-issued writ theproperty in question was seized, but on March 16,, 1916, the Fiscalreturned the writ and applied for an extension of time to enablehim to advertise the sale of the property seized, the Courtaccordingly extended the time to May 15, 1916, aud the sale of theproperty then took place. It should be stated that the writ wasnot stamped afresh on either of the occasions when it was re-issuedor extended, but the Court made relevant endorsements on theback of it. The defendants objected to the sale of the property,on the grounds that the writ was improperly re-issued, and that thesale was in any case bad, because there had been no fresh seizurewhen the writ was extended on the last occasion.
The word “ re-issue ” is commonly used to express the fact thatthe same writ is issued again for execution or for further execution.
It is used in this sense in the Schedule B, Part I.. of the StampOrdinance, No. 22 of 1909, which enacts as follows:—“ No summons,warrant of arrest or in execution, nor any other citation or writwhatsoever, which has once been issued out of the Court andreturned by the officer to whom it has been directed, shall, on anypretext whatever, be re-issued, unless any such process has beenreturned not served or .executed, by reason that the party couldnot be found, or had left the jurisdiction of the Court, or by reasonthat no property of the debtor or none sufficient to satisfy theexigency of the writ of execution could be found, or that the processhas been returned on the order of the Court. Provided further, thatin respect of any summons to a witness the same may be re-issuedat the discretion of the Court."
It is clear from this that a writ of execution may be re-issuedunder certain circumstances. In the present case, as the writ wasreturned by the Fiscal unexecuted for the reason that no propertyof the debtor could be found, the writ did not require fresh stampson its re-issue. It is true that the Civil Procedure Code does notexpressly speak of the re-issue of a writ, but in my opinion there isnothing there which prevents such re-issue. Moreover, the provisionin the schedule to the Stamp Ordinance is a substantive enactment,and if there be no inherent power in the Court for this purpose, asI think there is, that- provision by necessary implication allows are-issue, even without stamps in the exceptional cases therein men-tioned, and only requires fresh stamping in all other cases. This
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AndriaAppuv. KolandeAeari
1016. view is supported by a series of decisions. The first of them isDjs Samtayo PalaniaVPa Chetty v. Samsadeen. 1 In Mutappa Chetty v. Fernando -J. the Court, while holding that the re-issue of writ is not illegal in
itself, emphasizes the fact that the provision in the Stamp Ordinancehas a fiscal purpose only. This decision was affirmed in review bya Bench of three Judges, Hutchinson C.J. observing that the Courthas power to re-issue a writ which has been, as in that case, returnedby the Fiscal because the -sale was stayed at the request of theexecution-creditor, and that the enactment in the schedule to theStamp Ordinance means that the writ shall not be re-issued withoutpaying stamp duty (see Mutappa Chetty v. Fernando 3). Thiscollective decision, which is binding upon us, appears to me toconclude the matter. I therefore think that the objection asregards the re-issue of writ on February 2, 1916, must be over-ruled.
The second objection, to the effect that there ought to have beena fresh seizure when the writ was extended on March 16, 1916, ismuch more serious. I may here deal with a point which has beenincidentally raised in connection with this objection. It is con-tended that the Court, though it may extend the currency of awrit if application is made for that purpose before its returnabledate, has no power to do so after the period originally fixed for itsreturn has expired. But I entirely agree with the ruling to thecontrary in Attorney-General v. Ponniah. 4 Both the learned Judgeswho decided that case emphasized the fact that there was noauthority, statutory or judicial, to support the objection, and WoodBenton J. pointed out that, on the contrary, section 319, whichrequired the Fiscal, " if the latest day specified in the warrant forthe return thereof has been exceeded, to endorse upon the w'arrantthe cause of the delav,” was inconsistent with the view that thewarrant ipso facto expired when that date had been exceeded.That case was concerned "with a warrant of arrest, but the principleapplies to all processes. That being so, the seizure in this casecannot be said to have been effected under one w'rit, and the saleunder another writ. The Fiscal asked for an extension of time forcomplete execution of the writ by sale of the property alreadyseized thereunder, and the Court granted the extension. Attorney-General v. Ponniah (supra) is an authority for saying that a Judgehas power to extend the time for the execution of a writ, and re-issueit even without any application from the execution-creditor. Thisis what happened in the present case, and I think that the salemust be held to have taken place under one and the same writand in pursuance of a subsisting seizure. A seizure once effectedremains operative until its removal or withdrawal by order ofCourt, or, as I ventured to say in my judgment in Yapaliamine v.
i (1905) 8 N. L. R. 325.3 (1907) 10 N. L. B. 180.
3 (1906) 9 N. L. R. 150.4 (1908) 11 N. L. R. 245.
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Weerasuriya,' by circumstances of abandonment. With regard tothe Indian authorities on the subject of tacit withdrawal of this kind,it was said at the argument of this appeal that they did not applyto us, because in India it is the Court that attaches property andotherwise executes its own decrees. I am unable to see how anydifference in principle arises from this circumstance, but it isunnecessary to decide that particular point in this case. Nor needthe question, whether a seizure can subsist for an indefinite periodof time, be considered, because it is always open to a party interestedto obtain an order removing the seizure. As regards the mainobjection, Periar Carpen Chetty v. Sekappa CKetty 2 is a directauthority for the proposition that an order, for re-issue of a writ isnot a withdrawal of a seizure previously effected, and that even afresh seizure under the re-issued writ does not operate against thecontinued validity of the first seizure. In Patheruppillai v. Kan-Happen, 3 in which Pereira J. expressed a different view, PeriarCarpen Chetty v. Sekappa Chetty (supra), which is a decision of twoJudges, does not appear to have been cited or considered. Theauthority of Periar Carpen Chetty v. Sekappa Chetty is not affectedby the earlier case of Wijewardene v. Schubert, 4 because there anorder had been made by consent that “ the plaintiff’s claim be andthe same is hereby declared satisfied in full, and that the writissued in this case be recalled.”. The recall of the writ in thesecircumstances undoubtedly amounted to a removal of the seizurewhich had been effected thereunder. This is one af the very casescontemplated by section 239 of the Civil Procedure Code, whichimposes on the Court the duty to withdraw the seizure when thedecree has been satisfied. In this state of authorities, and onconsideration of the principles applicable to this branch of practice,I think, with great respect to the learned Judges who decided thecase of Gurusamy Pulle v. Meera Lebbe, s that the ruling in that caseis erroneous. As I have already dealt with the point there decided,I need only here refer to the reasoning founded on certain provisionsof the Civil Procedure Code. Since section 224 requires an appli-cation for writ and section 225 provides for its issue, and sincesection 226 lays down the duties of the Fiscal when he receives thewrit, including the seizure of property, it is said that here there islegislative provision requiring the seizure of property every timea writ is issued or re-issued. But, as I had occasion to say inYapahamine v. Weerasuriya, section 226 seems to me intendedto describe the general duties of the Fiscal, and not to requirethat he should repeat them all on every occasion. For instance,
I cannot conceive that it is necessary for the Fiscal at eachtime to repair to the dwelling house of the judgment-debtor and
(1914) 17 N. L. R. 183.s (1913) 16 N. L. R. 298.
(1910) 2 Cur. L. R. 162.4 (1906) 10 N. L. R. 90.
s (X914) 17 N. L. R. 467.
1916.,
——
De Sampato
^.ndrisAppuv. KolandeA sari
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1916.
De .Sahvayo
^f.
Andris AppuVi RolandsAeari
there require him to pay the amount of the 'writ as a preliminaryto execution of the writ by seizure of property. In my opinionthe Fiscal on the re-issue of a writ need only do such acts as areunder the circumstances of each case necessary for further executionof the decree. Moreover, section 224 itself provides for the judg-ment-creditor stating in his application the mode in which theassistance of the Court is required, “ whether (for instance) by theattachment of property or otherwise." Surely the last words " orotherwise ’’ authorizes the judgment-creditor, who has alreadyseized property, to say that he requires the assistance of the Courtby re-issue of the writ for the sale of the property so seized.Dispensation from seizure on the issue of a writ may be illustratedby another instance. Chapter XliVII of the Code provides forsequestration of property before judgment, and section 661 enacts-that where a decree is ultimately given in favour of the plaintiff, itshall not be necessary to sejze the property again in execution ofsuch decree. And yet, if the construction sought to be given to
section 226 is right, the Fiscal must nevertheless, seize the propertyagain. I also think that practical considerations justify theconclusions at which I have arrived. In the case of a claim inexecution the sale in most cases cannot take place during thecurrency of the writ. It was said, however, that the seizure mayin such a case be saved by applying for extension of time beforethe time fixed has expired. This is not always possible, as, forinstance, where the Fiscal has seized the property at the lastmoment. Moreover, the execution-creditor will be often prejudicedby claims in concurrence on the part of creditors who obtain judg-ment pending the claim proceedings.
For the reasons I have above given, I think that no second seizurewas necessary in this case after the writ was extended by the Courton March 16, 1916, and the sale which took place on the basis ofthe seizure previously effected was valid.^
I would set aside the order appealed from with costs.
Set o*id&.