008-NLR-NLR-V-11-DON-MARTHES-v.-DON-LUWIS.pdf
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Present : Mr. Justice Wendt.
DON MAETHES v. DON LUWIS.February 7.
C. R., Tangalla, 4,519.
■Civil ProcedureCode, s.349—Adjustment of decree—Breach of agree-
ment—Re-issue of writ—Payment by judgment-debtor—Separateaction for recovery of money—Maintainability.
The holder of a. money decree agreed that the judgment-debtorshould execute certain carpentry work in full satisfaction of thedecree. The judgment-debtor executed the work agreed on.
Subsequently the decree-holder issued execution for the amount ofthe decree, and the judgment-debtor paid the said amount andbrought this action to recover the money so paid and interest.
Held, that the action was maintainable.
Shadi v. Ganga Sahai2 and Poromanand Khasnabish t. KhcpooParamanick3 followed.
J N February, 1900, the defendant recovered judgment against
the plaintiff for a sum of Rs. 127.75 and costs. In August,
1905, he issued execution against plaintiff’s property, which wasseized and advertised for sale; the plaintiff thereupon paidRs. 182.42, the amount of the writ, and had his property released.
The plaintiff averred that, after the decree in the said case was
i (1872) 1 C. C. R. 378.2 (1881) I. L. R. 3 All. 538.
2 (1884) I. L. R. 10 Cal. 854.
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1908. passed, it was agreed between him and tbe defendant that he shouldFebruary 7. execute certain carpentry work for defendant (which was estimatedto be worth the amount of tbe debt), and that upon completion of itdefendant should give plaintiff a discharge in full from the judgmentdebt; The plaintiff completed the work by the end of the year 1904.The defendant, notwithstanding the said agreement, issued writ.The plaintiff brought this action to recover Rs. 182.42, the sum paidby him to defendant, and interest thereon Rs. 19.62.
The defendant pleaded that the carpentry work was a separatecontract and entirely independent of the judgment debt, and also'that, as the adjustment of the decree had not been certified undersection 349 of the Civil Code, it could not be proved, and that theplaintiff could not maintain the action.
The Commissioner held that the action was maintainable. Thedefendant appealed.
H. Prin8, for the defendant, appellant.
A. St. V. Jayewardene, for the plaintiff, respondent.
Cur. adv. vult.
February 7, 1908. Wkxdt J.—
The defendant in February, 1900, recovered against plaintiff, aCourt of Requests decree for Rs. 127.75 and costs; In August, 1905,.he issued execution against plaintiff’s property, which was seizedand advertised for sale, whereupon plaintiff paid Rs. 182.42, theamount of the writ, and had his property released. Plaintiff allegesthat after the decree was entered it was agreed between him anddefendant that he should execute certain carpentry work for defend-ant (w'hich was estimated to be worth the amount of the debt), andthat upon completion of it defendant should give plaintiff a dis-charge in full from the judgment debt. Plaintiff avers that he dulycompleted the work by the end of the year 1904 and became entitled'to the discharge, and that defendant’s thereupon issuing executionwas unlawful and wrongful. The plaintiff claims the Rs. 182.42and interest thereon Rs. 19.62. The defendant’s answer to thisclaim is that the contract as to the carpentry work was a separatecontract, entirely independent of the judgment debt. The defend-ant also relied upon the point of law that, inasmuch as the allegedadjustment of the decree had not been certified to the Court undersection 349 of the Civil Procedure Code, it could not be proved, andplaintiff’s action must therefore necessarily fail. The Commissioner,as a preliminary matter, ruled that the action was maintainable, anddefendant preferred an appeal against that ruling. It was objectedthat this was an interlocutory appeal, which was not competentin a Court of Requests case, but counsel agreed that, in tbe event ofthis Court upholding plaintiff’s right of action, judgment shouldbe entered i.n his favour, and the appeal was therefore heard.
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Doubtless, if it was essential to plaintiff's cause of action to show WS*that the decree had been satisfied, he must fail, because section 849 Fd>ruary 7.forbids any Court to recognize an uncertified payment or adjustment. Whnb* J.But, when a payment dr adjustment haB been made, that verysection oasts upon the decree-holder the duty of certifying it to theCourt; and the foundation of the present aotion, I take it, is that byfailing so to certify the adjustment they had arrived at, the defend-ant deprived the plaintiff of his defence to the attempt to executethe decree. That is the view which, almost without exception, hasbeen taken by the Courts in India of actions under the correspondingsection (258) of the Indian Code of Civil Procedure (see Shadi v.
Qanga Sahai,1 Poromanand Khamabisk v. Khepoo Paramanick,aand cases therein referred to). I adopt that view, and hold that thepresent action is maintainable.
The appeal will therefore, be dismissed, and a decree entered inplaintiff’s favour as prayed, with costs in both Courts.
Appeal dismissed.
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