037-NLR-NLR-V-09-DON-JACOVIS-v.-PERERA.pdf
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1906.June 29.
Present: The Hon. Mr. A. G. Lascelles, Acting Chief Justice, andMr. Justice Middleton.
DON JACOVIS v. PEREBA.D. C., Colombo, 2,369.
Mortgage decree—Decreefor thepayment of money—Execution—Due
diligence—Civil Procedure Code, s. 337.
A mortgage decree which orders the defendant to pay to theplaintiff a certain sum of money within a certain -time and directsthat, in default of such payment, the property hypothecated besold to satisfy the debt, is a decree for the payment of money,and the provisions of section 337 of the Civil Code apply to sucha decree.
A
PPEAL from an order of the District Judge (»T. R. Weinman,Esq.) refusing to issue execution.
The. facts sufficiently appear from the judgment of LascellesA.C.J.
M. de Saram, for the plaintiff, appellant.—This is an action ona mortgage. A decree was entered for the payment of the moneyduo on the bond and mortgage decree that the property be sold onfailure to pay the money. The decree being a mortgage decree, it
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is submitted that the provisions of section 337 of the Code do notapply, Ram Ghand v. Shobanat Rai (1). In that case the decree wasunder the Indian Transfer of Property Act, No. 4 of 3882. Sections86 and 88 of that Act deal with suits for foreclosure of mortgages.Section 86 provides for a decree where the action is for foreclosure,and section 88 where the action is for the payment of money. Sec-tion 201 of our Civil Procedure Code is similar to these sections, andthe Indian decision is applicable and should be followed.
Cut. adv. vult.
29th June, 1906. Lasoelles A.C.J.—
The District Judge has disallowed the plaintiff 's application fora notice on the defendant to show cause why an order should notbe made for sale in execution of the balance due under the mortgagedecree.
We are asked on the authority of Ram Ghand v. Shobanat Rai (1)to hold that a mortgage decree is not a decree for the payment ofmoney within the meaning of section 337 of the Civil ProcedureCode, and that consequently the District Judge was wrong in actingunder that section.
In order to decide whether the decree in this action falls underthe designation of a decree for the payment of money there is nobetter test than the language of the decree itself.
The decree orders the defendant to pay the plaintiff Rs. 282 withinterest and costs within one month from date, and in default ofpayment directs the sale of the hypothecated property.
It would be doing violence to the language employed to hold thatsuch a decree is not a decree for the payment of money. It clearlyis a decree for the payment of money as well as a mortgage decree.
The decree referred to in the Allahabad case seems to have beenin the form prescribed by the Transfer of Property Act, 1882,and would be in the common English form directing an account to betaken of what is due for principal interest, and costs under theMortgage Act, a sale in default of payment within a specified period.
It is to be noted that in the Allahabad case the Court came tothe conclusion that it was the intention of the Legislature that thesection corresponding to section 337 of the Ceylon Code shouldapply to mortgage decrees, and the Court thought it only reasonablethat some definite time should be fixed within which all decreesshould be executed, if they are to be executed at all. The decisionwas based solely on the ground that the Legislature had not usedapt words for giving effect to what the Court thought must have beenits intention.
1906.June 29.
(1) I. L. R. 16. All. 418.
1006.June 29.
XukSOBLUBS
A.O.J.
In the ease of a decree in the form usual in Ceylon mortgagesuits the difficulty does not arise.
There is no reason why such a decree Bhould not be consideredto be, what it plainly is, a decree for the payment of money.
It i6 therefore possible to give effect to what the Indian Judgesthought must have been the intention of the Code. I woulddismiss the appeal.
Middleton J.—I entirely agree.