William de Silva, Secretary, District Court, Kalutara,Substituted Plaintiff, Respondent ;
Weerasingiie Appuiiamy, Purchaser, Respondent.
72, D. C. (Inty.), Kalutara, 2,679.
• Application to set aside sale—Writ reissued without fresh stamps—
Action rei viwlicotio—Alternative decree-for delivery of movables
or payment of money—Civil J’mccdurc Code, ss. Wly 2X2, 320-322,
On August 30, 1909, a writ was issued against the first defendantonly, to recover Rs. 2,132.85 and costs. On September 10, 1909,the Fiscal returned it into Court at the request of the plaintiff,and on the next day it was re-issued, having been altered bystriking out the name of the first defendant and substituting the•names of the second and third defendants, by altering the sumto be levied to Rs. 882.42, and by substituting October 25 forSeptember 28 for the date of the return.
Held, that this was not a re-issue of a writ, but the issue of a newwrit, and had to bo stamped accordingly.
A Court has power to set aside a sale for reasons other than .those specified in section 282, if the application is made before theconfirmation of the sale.
Per Middleton J.—In an action rei vimlieatio for tho recoveryof specific movable property an alternative decree for payment ofits value is not bad.
Section 191 of the Civil Procedure Code is consistent* withsections 320-322.
Sithamparapillai v. Vinasitamby el al.1 and Sheik Alt v. CurunjccJ offer jee^ questioned.
rJ'HE facts arc fully set out in the judgment of Middleton J.
St. V. Jayewardene, for third defendant, appellant.
De Sampayo, K.C., for respondent.
Cur. adv. yult.
1 (1896) 1 H. L. i?. 111.
1 (1895) 1 N. L. H. 117.
( 9 )
July 15, 1910. Hutchinson C.J.—
agree will) my brother Middleton that the writ of executionunder which the sale look place was not duly issued and stamped.In pursuance of ihc order of August 26, 1909, a writ was issuedon August 30, 1909, against the first defendant only to recoverRs. 2,132.85 and costs. On September 10, 1909, ihc Fiscal re-turned it into Court at the request of the plaintiff, and on the nextday it was re-issued, having been altered by striking out the nameof the first defendant and substituting the names of the second andthird defendants, by altering the sum to be levied to Rs. 882.42and by substituting October 25, for September 28 for the date ofreturn. That was not the re-issue of a writ, but-the issue of a newwrit, and il was not stamped as a new writ. I agree to the orderproposed' by my brother Middleton.
Middleton J.—
This was an appeal from an order refusing to set aside a sale.The grounds on which the sale was sought to be set aside were, (1)that there was no decree upon which writ of execution ought tohave issued, and (2) that the writ upon which the sale took placewas not duly issued and stamped.’
The facts were that two judgments had been obtained against thethree defendants in a Testamentary Case No. 26,792, D. C., Kalu-lara, by the administrator of their father's cslale for the deliveringup of certain movable property. Decree nisi against the first andsecond defendants on June 10, 1903, was made absolute, and adecree (page 88) against the third defendant was drawn up on June10. 1903. Neither of these decrees stated in conformity withsection 19 i of the Civil Procedure Code the amount of money to bepaid as an alternative, if delivery could not be had of the movablesin .question.
On appeal these decrees were set aside cn terms by two judg-ments of the Supreme Court, dated respectively August 20, 1903,and September 9, 1903, and new trials ordered. A new trialappears to have taken place in respect to the first and seconddefendants, and decree was entered in the District Court on March30, 1904, and upon appeal affirmed on February 9, 1905. Itappears from the Record (p. 31) that the third defendant took nosteps in accordance with the conditional order he obtained from theSupreme Court on August 20, 1903, audit must be taken that thedecree of June it), 1903, is still in force as against him. Thedecree of March 13, 19.04, is also nol in conformity with section 191of the Civil Procedure Code. On March 18, 1904, application wasmade for the issue of a writ, pending a new trial against the first andsecond defendants, for the recovery of the furniture mentioned inthe schedule annexed to the decree and costs Rs. 184.12£ by seizure
u 2
JulyU, VJiO
.*t ppuhamy v.Appuhamy
( 10 )
July 15,1910 and sale of third defendant’s property. This writ was issued onMiddleton March 31, 1904, and returned into Court on May 16, 1904, for anJ- extension of time to enable the Fiscal to advertise the property forAppuhamyv. sale which had been seized according to the seizure report theretoAppuhamy annexed. On May 20, 1904, it was extended and re-issued forexecution, returnable on August 14, 1904. On May 27, 1904, it wasreturned unexecuted at the request of the proctor for the judgment-creditor. On October 24, 1905, the plaintiff applied for the execu-tion of the decree by the re-issue of the writ against the propertyof the third defendant for the recovery of Rs. 184.12^, which wasallowed on fresh stamps being affixed, the writ being returnable onJanuary 22, 1906. This writ has a further endorsement on theback of it, that it was returned on January 22, and a note “ to seizethe property and report who is in possession ”. It is noticeable thatboth this writ itself and the application just recited only empowerthe levying of a sum due for costs, and not any sum due for the. articles which the third defendant had been ordered to deliver. OnJanuary 23, 1906, the plaintiff having failed to advance Gazetteadvertising charges, the Deputy Fiscal returned the writ to Courtunexecuted. On April 9, 1904, plaintiff’s proctor applied for awrit of delivery of possession of the property decreed in the case,which was allowed, and on April 21, 1904, a. writ of possession wasissued. I presume this means for delivery of possession. The writwas directed only to the first and second defendants, and wasreturned into Court on February 21, 1905, with a settlement by theFiscal that the property described in a certain list had been deliveredto the plaintiff, but that the rest of the property mentioned in theschedule to the writ was not forthcoming. Nothing seems to havebeen done until October 20, 1908, when an order nisi was made .andissued substituting the Secretary of the Court as official adminis-trator for the original decree-holder in terms of section 339 of theCivil Procedure Code. On November 13, 1908, a note appears inthe diary that the order nisi was served on the first and secondrespondents-defendants, the third respondent-defendant being saidto be in Rakwana. On the same day the order appears from thediary to have been re-issued for service on the third defendant-respondent. On December 3, 1908, in the presence of the proposedsubstituted plaintiff and first defendant as first respondent, thesecond being absent and the third being said to be in Malawana,the order nisi was again re-issued on the third defendant-respondent,returnable on December 17, 1908.
On December 17, 1908, in the presence of the third defendant,an application was made by the first defendant’s proctor agreeingto pay one-third of the amount due by his client, and also theremaining two-thirds in the event of the second and third defendantsfailing to pay their share, which was allowed. On March 3, 1909,an application by the substituted plaintiff to re-issue writ against
( II )
the defendants to recover the articles as appearing in the schedule Jul,J Ja»annexed to the writ and Rs. 1K4.12i costs was allowed. And on miudue-tostMarch 8, 1909, the order, meaning, I suppose, writ, was issued.
The application recites that the decree on which it is founded is
dated June 10, 1903, which is the date of the decree against the Apimlwmy
third defendant only. It also recites that part of the properly had
been recovered, and that it was 1o be enforced against all the
defendants to recover the articles appearing in the schedule annexed
to the writ. On April 6, 1909, the Deputy' Fiscal returned the
writ, reporting that on demand from the first and second defendants
of the property they stated that it was not in their possession, and
he (the Fiscal) could not find it.
On May 28, 1909, the substituted plaintiff filed an affidavit andobtained an order nisi, issued returnable on June 10, 1909, directingthe defendants to pay the sum of Rs. 2,979, or in default to showcause why writ of execution should not be issued against them. Itappeured impossible to find the second and third defendants, but onJuly 1, 1909, the second and third defendants were reported asevading summons, and substituted service of the order nisi wasallowed to be affixed to their last known place of abode, and thecase adjourned to July 15. On July 15 the first and thirddefcndanls-rcspondents were present, when the case was adjournedto August 12, on which date only the first defendant was present.
On August 19, 1909, a proctor, according to the journal entries,appeared for all the defendants and filed an affidavit, and onAugust 26, 1909, an inquiry was held in the presence of proctorsfor the parties, according to the journal entries, and the writ wasordered to issue, but apparently it did not issue.
On reference to the Record, it appears on August 26, 1909, theproctor only represented the first defendant, but I think it is clearfrom the journal entry of July 15 that the third defendant mustbe held affected with notice of what took place upon the inquiry onAugust 26 and subsequently. The order was, I think, rightly madeagainst all the defendants, certainly as against the third defendant.
On August 30, 1909, writ was allowed to issue against the firstdefendant only, returnable, on September 28, 1909, for the sum ofRs. 2,132.18. On September 10, 1909, an arrangement was cometo with the first defendant by which he agreed to pay into CourtRs, 511.24, being onc-lhird of the judgment against him, and topoint out for seizure and sale the property of the second and thirddefendants for the recovery of the balance as per decree. On thesame day the writ shows from the endorsement of the Fiscal that itwas returned into Court at the request of the plaintiff for an amend-ment, and on September 11, 1909, it was altered by striking out thoname of the first defendant and inserting the names of the secondand third defendants, and by altering the sum to be recovered toRs. 882'42. The writ purported to issue in virtue of a judgment
( 12 )
JuhjiotVjio dated August 26, 1909. This was struck out but re-inserted, andMidduton the writ made returnable on October 25, 1909. Upon the re-issueof the writ as amended the third defendant's properly was sold, asAppuhmwfv. he alleges, for far less than its value, and upon an order madeAppnham-!/ refusing to set aside this sale the present appeal was preferred.
I have thought it necessary to abstract the journal entries fromalmost the inception of the action in order to arrive at a rightunderstanding of the facts. No objection has been taken in thepetition-of appeal that the amount ordered by the amended writ to.be levied was incorrect, and I think it must be taken that it iscorrect.
The original decrees of June 10, 1903, and March 13, 1904, werenot in conformity with section 191, as not slating an alternativeamount, but Bonser C.J. and Browne A.J.; in SithamparapiUai v.Vinasitamby et al.x and Sheik Ali v. Carimjee Jafferjeeheld injudgments which, although they have been questioned, have not,sp far as I am aware, been over-ruled, that section 191 must bedisregarded as inconsistent with sections 320-322 of the CivilProcedure Code.
As regards the judgments of Bonser C.J. and Browne A.J. in thecases above mentioned, as to section 191 and sections 320-322,my own opinion is, that section 191, as I believe I have said before,is consistent with sections 320-322.
A judgment in the form contemplated in section 191 may beexecuted according to the procedure laid down in sections 320-322.A writ would issue for delivery of possession in terms of No. 62 inthe second schedule. In default of delivery the procedure laiddown in section 321 would be adopted and the Court having alreadyestimated the judgment-creditor’s loss by not receiving the goods inthe decree, it will not be necessary to do so again unless any furtherloss has occurred by non-delivery. The original application forexecution might also be made in the alternative. It seems to mealso in the case of an alternative decree the judgment-creditor couldhimself demand delivery from the judgment-debtor, and if refusedhe could on his application for execution as a money decree embodyin an affidavit proof of the demand and refusal, when the Courtmight issue a writ for the recovery of the money at once. In anycase it seems to me that if a judgment-debtor is ordered by decreeto deliver up movable properly, demand ought to be made by theFiscal under the writ issued to him. for the delivery of the goodsbefore seizure of other property to be sold to satisfy the value ofthem. It is not alleged, however, that no demand was made uponthem for delivery, but that the decree of 1903,, L understand, didnot state the alternative amount to be paid in default of deliveryupon which a money writ could issue. An attempt was made tocure this by the application of May 25, 1909, and the question is1 (Mi) 1 X. L. R. 114.• * (Mi) 1 N. L. H. 117.
( 13 )
whether the third defendant had not waived his right to dispute theamount ordered by the Court to be paid by omitting to appear and ,nm>ucTONshow cause upon the hearing of that application. This judgmenthas been in force against him since 1903. He took an appeal against Appuhamyv,it, and did not fulfil the conditions imposed upon him by the Supreme AppuhamyCourt so as to enable him to obtain a new trial. He must have beenwell aware of what the decree ordered him to do, but he has succeededin evading his obligation under the judgment against him for somesix years. He is a brother of the original plaintiff and of his co-defendants, and upon the original trial against him admitted thatthe property in question belonged to his deceased father, but declined,when called upon to do so, to take up the burden of proving that ithad been gifted to him as he alleged. His conduct clearly showsthat he did not intend to deliver up the articles in question, and ifhe did not do so he was clearly liable for their value. He had anopportunity of disputing the value.put on them by the plaintiff, andhe failed to appear and do so, and in my opinion he is now debarredfrom doing so. I would treat the application of May 28, 1909, andthe consequent order thereon on August 26, 1909, as an amendmentof the decree in conformity with section 191. Tt is not alleged thatany irregularity took place in the sale itself or its preliminaries,merely that the amount for which the property was sold was farless than its value.
This brings us to the question of the re-issue of the writ with-out due stamping. The terms of the schedule of the StampOrdinance, 1890, are very stringent. The case if Oorloff et al.v. Grebe et aL? confirmed in review by the Full Court, as reportedat page 183 of 10 N. L /?., is much in point. The writ herewas returned into Court under circumstance which are notexcepted by the schedule. It was not perhaps returned into Courtin the sense contemplated in the schedule, which assumes regularityof procedure, but it was irregularly returned, owing to the fact,probably, that the plaintiff was himself an.officer of the Court. Itwas amended and sent back to the Fiscal without the affixing offurther stamps as upon a re-issue, and 1 must hold, considering thestringency of the schedule, for the future prevention of similarirregularities, that it was in fact and in form re-issued and bad on theface of it, as having been returned and re-issued without the stampduty having been duly paid. (Palaniappa Chetty v. Samsadeen.1) Ithink the schedule is directed, not only to the protection of revenue,but partly to the prevention of irregularities like this by agreementbetween the persons directly responsible for the preparation andissue of writs and those entrusted with the immediate duty ofexecuting them, which might! ead to fraud and injustice. The writoriginally might have issued under the order of August 26, 1909,against all three defendants, and I think might have been executed
1 {1900) 0 A h. R. 150,2 [1905) S Nt L, R. 325,
( 14 )
July 15,1910 against any one of them, but the plaintiff chose to apply for itMiddleton only against the first defendant. The date of his application for_ writ (Record, p. 37) and the date of the copy of the order orderingAppuhumy v. the execution (Record, p. 44) have both been altered, which showsApp'iihauiy to my mind, taken with the alteration of the writ itself, that theSecretary of the Court takes an extremely irregular view of theresponsibilities imposed on him by his office. Another point wasthat no application was made to the Court by petition under section224 for execution as against the third defendant, so that the Courthad made no order for execution as against the third defendantupon the order made by it on August 26, 1909. As this order maybe made ex parte, the third defendant is able to say he was not awareof it, and so was unable to seek a stay of the sale before. I think,therefore, that there was no proper re-issue of the writ as against the• third defendant, and if there had been, that the sale is bad, as havingbeen carried out upon a writ of execution issued without the dueauthority of the Court. It is objected that the purchaser-respondentto these proceedings ought not to have been made a party, and thatas these proceedings were not taken under section 282 there was nosection of the Code providing for this. It seems to me that section344 of the Civi| Procedure Code provides for such a matter as this,and that under it the purchaser may be, and ought to be, joined as aparty, both on the grounds of convenience, expense, and avoiding ofa multiplicity of actions. The Indian Code recognizes this undersection 244 of the 1882 Civil Procedure Code.1 In Wickremesinghev. Jewath Hamy2 this Court recognized that the Court had powerto set aside a sale for reasons other than those specified in section 282,if the application was made before the confirmation of the sale, as it•' is here. I think, therefore, that the appeal should be allowed and thesale set aside, the parties being relegated to the position occupied bythem upon the order of August 26,1909. I think the third defendantshould pay his own costs of the appeal and that the plaintiff-respondent should pay the costs of the purchaser-respondent.
Appeal allowed.

1 (1896) 19 Cal. 662,
* (I960) 2 A. C. E. 160,