043-NLR-NLR-V-72-ATCHUVELY-MULTI-PURPOSE-CO-OPERATIVE-SOCIETY-LTD.-Applicant-and-S.-BALASINGHAM.pdf
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PAXDITA-GUXA WARDEXE, J.—Atchuvely Multi-purpose
Co operative Society Ltd. v. Balasingham
1969 Present: Samerawickrarae, J., and Pandita-Gunawardene, J.ATCHUVELY MULTI-PURPOSE CO-OPERATIVE SOCIETYLTD., Appellant, and S. BALASINGHAM, Rosponclont
C. 106/67 {Inly.)—D. C. Jaffna, 26S/A
Co-operative Societies Ordinance, as amended by Act JYo. 27 of 190-1—Section S3 A {4)—Enforcement of an award thereunder—Seizure and sale of defaulter's dwellinghouse—Validity—Difference, in execution proceedings, between a decree ofCourt and an award made under the Co-operative Societies Ordinance—CivilProcedure Code, as amended by Act No. 49 of 19oS, ss.217, 2IS (»).
When ft sum of money duo under nn award nindo under the Co-operativeSocieties Ordinance is sought to bo recovered in terms of tho provisions ofsection 53A (4) of the Co-operative Societies Ordinance, the dwelling houseof the defaulter is liable to bo seized and sold in pursuance of the writ issuedto tho Fiscal by tho District- Court. In such a case, the defaulter is not entitledto the benefit of tho proviso to the amended section 21S of tho Civil ProcedureCode because what is sought- to bo enforced is not a decree or order of a Courtbut an award made under tho Co-operative Societies Ordinance. Moreover,according to section 53A (4) of the Co-operative Societies Ordinance., the onlysections of tho Civil Procedure Code which arc applicable to execution-proceedings relating to an award arc sections 226 to 2fl7.
.A.PPEAL from an orclor of the District Court, Jaffna.
A. G. Gooneratue, Q.G., with /S'. Skarvuntunlci. for the pietilioncr-appollant.
No appearance for the respondent-respondent:
Cur. adv. vidt.
July II, 1969. Paxdita-Gi»xa warden e. J.—
Tho provision in the Co-operative Societies Ordinance which stipulatesfor enforcement of awards is Section 53 A (Co-operative Societies (Amend-ment) Act 27 of 19C4).
Section 53A (4) empowers the Rogistrar upon an award being made inthe- matter of a dispute that a sum of money due by one party to anotherhn.s not been paid, to issue a certificate to tho District Court “and the.Court shall thereupon direct a writ of execution to issue to the Fiscalauthorizing and requiring him to seize and sell all or any of tho propertymovable and immovable of tho defaulter, or such part thereof as he maydeem necessary for (ho recovery of such sum. and 1 he pro visions of sect ions226 to 297 of tho Civil Procedure Code -shall, mutalis mutandis, apply tosuch seizure and sale ”.
PAX DITA -C UNA WAR DEXE, J.—Atchurdy Multipurpose Co-operative1S1
Society It’d. v. Balasingham
Iii this caso upon application mado to him under soction 53A (4) tholearned Additional District Judge directed writ- of execution to issue totho Fiscal for soizuro and salo of projicrtios belonging to tho respondentfor default of paymont on the award. Pursuant to the Court’s directiontho Fiscal seized tho dwelling house of tho respondent.
Tho respondent's contention is that in view of section 21S Civil Proce-dure Code as amended by soction 2 (2) of Act Xo. 4-0 of 1958, his dwellinghouse is not liablo to seizure and sale. The learned Additional DistrictJudge has accepted this contention and ordered that the property seizedbo released from seizure. Tho appellant, tho Atchuvoly Multi-PurposeCo-oporativc Society Ltd., appeals from this Order.
Chap. 22 Civil Procedure Code deals with executions. Section 217enacts, “ A decree or ordor-of court, may command the person againstwhom it operates—
to pay money ;
1
not relevant
JUnder section 21S whore the decree to pay money remains unsatisfiedthe judgment-creditor is entitled to seize and sell, among others, theimmovable property of tho judgment-debtor. There is however thoproviso to this section which gives a list of items of property which shallnot bo liablo for seizure or sale. By section 2 (2) of Act 49 of 195S, thodwelling house of the judgment-debtor has been added to tho list ofexcepted property.
It has been argued for tho appellant that section 218 and its amend-ment only applies to seizure and sale in enforcement of a decroo or order ofCourt; that what is sought to bo enforced here is not a decree or order of aCourt but an award under tho Co-opcrativo Societies Ordinance.
It would appoar to mo that thoro is substance in this argument. Interms of section 53A (4) of the Co-operative Societies Ordinance tho Courtdoes not enter a decroo or make any order upon tho award submitted toit. Tho Court has no option'but to direct that writ of execution do issuo,not upon a decree or order entored by Court but on tho award filed boforoit. In that view of tho matter tho proviso to soction 218 cannot bo saidto apply. It is pertinent to noto in this regard that section 53 A (4) (Co-operative Societies Ordinance) expressly provides that sections 226 to 297Civil Procedure Code shall apply. These would, therefore, bo the onlysections of tho Civil Procedure Code in the Chaptor dealing with“ executions ” which would bccomo oporativo. They aro sections which
1S2
’ Aainoathani u. Prcmaurartlena
deal ■with, “ the duties of the Fiscal on receiving writ: inodes of soizuro”,-“ claim to property seized : ” and “ sale of movable and immovableproperty:”.
Had the Legislature intended that the judgment-debtor bo entitledto tho benefit of the proviso to section 218 Civil Procedure Codo in thoenforcement of an award under section 53 A (4) (Co-operative SocietiesOrdinance) it would, T expect, havo so provided. In tho absence of sucha provision I find mysolf unable to agree with the ordor of the learnedAdditional District Judge releasing tho respondent’s proporty fromsoizuro. Tho order directing tho Fiscal to reloaso tho proporty fromsoizuro is sot aside.
Tho appeal is allowed with costs.
Samejrawickrame, J.—I agree.
Appeal allowed.