120-NLR-NLR-V-30-DHARMADASA-v.-ABDUL-CADER.pdf
( 426 )
1929
Present: Dalton and Akbar JJ.DHARMADASA v. ABDUL CADER.371—D. C. Balticaloa, 6,309.
Fiscal—Bond of indemnity—Mandate of sequestration—Assignment ofdecree—Deputy Fiscal’s right to assign indemnity bond to assigneeof decree—Ordinance No. 4 of 1867, s. 83.
In execution of a mandate of sequestration issued in an actionbefore judgment, the Fiscal seized a motor bus, when the defend-ants entered into a bond with the Fiscal, whereby they undertookto produce the motor bus in the same state as at the time of seizure.The defendants having failed to observe the condition of the bond,the Fiscal assigned the bond to the plaintiff, who was the assigneeof the decree entered in the action,—
Held, that the plaintiff was entitled to obtain an assignment ofthe rights of the Fiscal under the bond.
The Deputy Fiscal may assign a bond entered in favour of the•Fiscal.
Chinniah v. Ahamadu Levvai,' followed.
mHE plaintiff was the assignee of a decree entered in caseA No. 1,864 of the District Court of Matara, whereby thejudgment-creditor assigned the sum of Rs. 1,727'48, less a sum ofRs. 344‘35. It would appear that a motor bus was seized on amandate of sequestration issued in case No. 1,864 at the instanceof the plaintiff. Thereupon the defendants entered into an agree-ment with the Fiscal, whereby they undertook to be responsible forthe production of the motor bus in the same condition and state asat the time of seizure. They entered into a bond with the Fiscalin the penal sum of Rs. 4,000. As the bus was not carefully kept bythe defendants, the Fiscal took possession of it and put it up for sale,when it realized only a sum of Rs. 355 owing to improper use on thepart of the defendants. The plaintiff, who was the assignee of thedecree in case No. 1,864, obtained an assignment of the bond fromthe Deputy Fiscal" and sued the defendant claiming the sum ofRs. 3,615, namely, the sum covered by the bond less the value ofthe bus. The learned District Judge gave judgment for the plain-tiff for the sum of Rs. 750.
Tisseverasinghe, for defendant, appellant.—The Fiscal had noright to sell the bus unless he considered it subject “ to speedyand natural decay, ” as provided for by section 227 of the CivilProcedure Code. The bond and the sale thereunder before the
1 24 N. L. R. 90.
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-date of the decree were irregular and of no force in law. The 1929.plaintiff has been given credit for the sum of Rs. 344* 35 realized ^orinaAwoby the'sale of the bus. Plaintiff was apparently satisfied with the v. Abdulsale; ^)nd as there is no reference to the bond in the decree, the Coderplaintiff had no further right or interest in the bond, and the assigneetherefore had none. There was no consideration for the assignmentof the bond, which has not been registered under Ordinance No. 8 of1871. , The bond was entered into with the Fiscal, and the DeputyFiscal had no right to assign (Ibrahim Saibo v. Weerappen et all,
Abdul Coder v. Valliappa PiUai2).
If the Fiscal considered that the defendants had •committed abreach of the bond, ho should have refused to take delivery andsought his recovery on the bond. He cannot take the bus andalso sue for damages.
Peri Sunderam, for plaintiff! respondent.—It is not competentfor the appellant to raise points in appeal which are outside theissues agreed upon. The first issue raised was as to whether theliability on the bond was discharged by the delivery of the bus forsale by the Fiscal and the Fiscal’s acceptance of it.
The liability can only be discharged if the bus was discharged inthe same state and condition. There is evidence that it was notso delivered, and the learned District Judge has found in favour ofthe plaintiff.
The assignment is good under section 83 of Ordinance No. 4 of1867. A Deputy Fiscal can assign a bond entered in favour of theFiscal. (Chinniah v. Ahamadu Lewai (supra).)
Tisseverasinghe, in reply.-—The words of section 83 have notbeen considered in Chinniah v. Ahamadu Lewai (supra). Theynegative the contention that the generality of the powers andduties of the Fiscal devolve on a Deputy Fiscal in such a matteras the assignment of a security.
February 5, 1929. Akbar J.—
This is an appeal from the judgment of the District Judgeawarding the plaintiff the sum of Rs. 750 against the defendantsseverally and jointly, and the costs of the action.
The plaintiff was the assignee of a decree entered in caseNo. 1,864 of the District Court pf Matara by the judgment-creditorin that ease, whereby the judgment-creditor assigned the sum ofRs. 1,727-48, less the sum of Rs. 344-35 raised by the sale ofthe motor bus pending the decision of the Matara case, and all therights of the assignor under the said decree.
1 Wendt 226.* .5Balasingham 95.
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1929 It appears that the bus was seized on a mandate of sequestrationAkbab J issue<^ by the District Judge of Matara in the Matara case at the
instance of the plaintiff. Upon this seizure, the defendants in
*bis case entered into an agreement with the Fiscal, whereby theyCoder undertook to be responsible for the production of the motor buswhenever required in the same condition and state as at the time ofseizure, or to pay double its value. The defendants in this casethereupon entered into a bond with the Fiscal in the penal sum ofRs. 4,000, which was double the value of the bus, on August 3,1925.
. By this same bond this bus was hypothecated to the Fiscal.
The second defendant in this case appears to have preferred aclaim to this bus on the strength of a deed of assignment by thedefendants in the Matara case, and the claim inquiry was inquiredinto on February 9, 1926, and apparently dismissed. The Fiscalthen appears to have taken possession of the bus, because the buswas not taken proper care of by the defendants, in terms of the deedof hypothecation entered into by the defendants with the Fiscal.
On June 5, 1926, the bus was duly put up for sale and onlyfetched the sum of Rs. 355, owing, it is stated, to the depreciationin its value due to exposure and the improper care bestowed onthe bus by the defendants in this case. In the Fiscal’s report toCourt, the Fisoal reported that some parts of the bus and thecushions were missing, and that the iron parts had rusted, and thatthe depreciation in value was due to this.
The plaintiff then obtained the assignment in the Matara case,as mentioned by me above, and he further fortified his position bygetting an assignment from the Deputy Fiscal, of the bond ofhypothecation entered into by the defendants in this case and theFiscal of the Eastern Province.
In the present action the plaintiff set forth the assignment andclaimed to be entitled to receive Rs. 3,645, being , the differencebetween Rs. 4,000 secured by the assignment of the Fiscal’s bondand the sum of Rs. 355, the value of the bus when sold. The casewent to trial on the following issues, which were agreed to by theparties
Had the liability of the defendants on the bond been dis-
charged by the delivery by them of the bus for sale by theFiscal and by the Fiscal’s acceptance of it ?
Was the bus not delivered by the defendants to the Fiscal in
the same state and condition in which they received it ?(a) If so, to what amount (if any) are they liable indamages ?
Had the Deputy Fiscal, Eastern Province, the lawful right to
assign the security bond “ P 2 ” to the plaintiff ?
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Mr. Tisseverasinghe, for the defendants-appellants, raisedmany points of law during the course of his argument, but it isnecessary to mention here that all the points of law he raisedcannot, I think, fairly be dealt with in appeal, because the issueswere confined, by the consent of the parties, to the three issues Ihave mentioned above. Even so I propose to deal with thepoints raised by Mr. Tisseverasinghe.
As regards the first issue, I do not see how it can be contendedthat the liability of the defendants on the bond of hypothecationgiven by them to the Fiscal was discharged merely by the deliveryby them, of the bus for sale. It would have been more proper ifthe Fiscal or his representative had definitely informed thedefendants that the bus was not in the condition in which it was atthe time the bond was entered into, and that the defendants wereanswerable for the depreciation in the value of the bus owing tothe negligence of the defendants in not taking proper care of it.There is, unfortunately, no evidence that such notice was given,but what I have got to deal with is, ehether there was a dischargeof this bond. Such discharge can only be pleaded by way ofestoppel, and I fail to see how the defendants have suffered anydamage by the action of the Fiscal in not giving such notice. Ifthe Fiscal or his assignee can prove as a matter of fact that the bushas suffered from exposure and had considerably deteriorated invalue owing to it, defendants would, in my opinion, be liable to besued on the bond of hypothecation.
As a matter of fact, the second issue did raise this point, and theDistrict Judge has definitely found that the deterioration in value •could be reasonably assessed at the sum of Rs. 750, for whichamount he has given judgment for the plaintiff. I see no reasonwhy the District Judge’s finding on this point should be disturbed.
The main ground of argument was under issue (3), under whichissuo Mr. Tisseverasinghe raised a number of interesting law points.In the first place, he contended that the assignment was not properlystamped, and that the Deputy Fiscal had no right to assign thebond on behalf of the Fiscal by a mere endorsement, and he quotedin support a case reported in 3 Appeal Court Reports 46. Theshort answer to this case is that the law has since been amended,making the Fiscal a corporation sole (see section 83a of OrdinanceNo. 4 of 1867, amended by Ordinance No. 24 of 1908).
Mr. Tisseverasinghe cited cases reported in Wendt's Reports 266and 5 Bal. Reports 95 to support his argument that the DeputyFiscal had no right to assign the bond. The Counsel for therespondent, however, cited a later case reported in 24 N. L. R. 90.This last case is a judgment of two Judges, and {he case in Wendt'sReports Was cited to the Court. It is Unfortunate that the case in5 Bal. Reports 95 was not cited. Even so, the case in 5 Bal. Reports 95
1929
Akbar J.
Dhnrmadasav. AbdulCoder
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1929
Akbar J.
Dharmadasav. AbdulCoder
was only as regards an assignment under section 279 of the
Civil Procedure Code, and refers to a debt or negotiable instrumentsold at an execution sale by. the Fiscal and is not exactly in point.
I prefer to follow the last decision of the Supreme Court, reportedin 24 N. L. R. 90, because I agree with Ennis J. in his opinionthat section 5 is wide enough to enable the Deputy Fiscal to exercisethe powers and perform the duties required by the Fiscal’s Ordinanceto be exercised and performed by the Fiscal. It will be seen from aperusal of that judgment that it applies to this case, and that theDeputy Fiscal may endorse by writing any indemnity bond withoutits being stamped. The only difficulty I had was that the deedassigning the decree to the plaintiff deducts the value of the busrealized by the sale. On the other hand, this assignment alsoassigns all right, title, and interest in the decree to the plaintiff inthe case. Section 83 of the Fiscal’s Ordinance of 1867, empowersthe Deputy Fiscal or Fiscal to endorse by mere writing allthe rights which the Fiscal has in any indemnity bond, and suchassignment will be sufficient to convey to the assignee the rightto sue on the bond, and to derive all the benefits and advantagesarising therefrom.
There is no mention of any consideration. That being so, if I amof opinion—and I am of opinion—that the Fiscal had the right tosue on the bond, the Fiscal could convey this right by assignmentto the plaintiff without any question of consideration. The merefact that the assignment of the decree sets off the value realized bythe sale of the bus does not, in my opinion, take away the right thejudgment-creditor or his assignee had of asking the Fiscal to assignthe Fiscal’s rights on the hypothecation bond to him. This theFiscal has done.
In my opinion the judgment is correct, and I would dismiss theappeal with costs.
Dalton J.—I agree.
Appeal dismissed.