072-NLR-NLR-V-58-E.-S.-WIMALASEKERA-Appellant-and-PARAKRAMA-SAMUDRA-CO-OPERATIVE-AGRICULTURAL-.pdf
298
195?Present: Swan, J., and K. D. de Silva, J.S. WIMALASEKERA, Appellant, and PARAKRAMA SAMUDRACO-OPERATIVE AGRICULTURAL PRODUCTION AND SALESSOCIETY, LTD., RespondentS. C. 77—D. C. Anuradhapii-ra-, 3,4-52
Execution—IVrit issued without jurisdiction—-Seizure of goods thereunder—Liabilityfor damages—Proof of malice—Quantum of damages—Civil Procedure Code,s. 763.
A seizure of goods on a writ issued without jurisdiction renders the parly,at whoso instance tlio scizuro was effected, liable in damages without proof ofnialico…
Under tho provisions of sect ion 7C3 of tlio Civil Procedure Codo it is irnporativothat, in on application for execution of a decree which has boon apponled against,tlio judgment-debtor should bo mado respondent. A writ which – fails tocomply with this requirement of section 7C3 falls into tho category of a writissued without jurisdiction.
It is tho duty of a party who is entitled to claim damages to tnkoall reasonable steps to minimiso tho damages.
-A-PPEAL from a judgment of the District Court, Anuradhapura.y, Kumarasinykam, for the defendant, appellant.Cur. adv. cult.
//. V. Perera. Q.C., with E. P. S. R. Coomarasicamy, for the-plaintiffrespondent.
K. D. DE SILVA, J.—Wimalaiekera v. Parakrama Sainitdra Co-operative 200.. Agricultural Production and Sales Society, Ltd.
September 14, 1055. K. D. de Selva, J.—
• This is an appeal from a judgment of the District Judge, Anuradhapura,awarding the plaintiff a sum of Rs. 12,276 with legal interest thereonas damages for illegal .seizure of the goods belonging to the plaintiff.
The plaintiff is a Co-operative Society duly registered under the provi-sions of the Co-operative Societies Ordinance (Cap. 107) which carries ontlio business, inter alia, of the purchase and sale of paddy. Tho defendanton 9th August, 1951, obtained judgment, against tho plaintiff inCase Ho. 3122 D. C. Anuradhapura in a sum of Rs. 4I,S92’50. On thesamo day that judgment was entered in that action the present plaintiffwho was the defendant in that case filed a petition of appeal. Tho samoday the Proctor for tho plaintiff in that action filed an application forexecution and obtained a writ for the recovery of tho amount due on thodecree. This writ was issued to the Fiscal returnable on 1.12.’51. Oil15.S.’51 the Proctor for the defendant in that case filed apetitionstating,inter alia, that the application for writ had been made after the appealhad .been taken . against the judgment but that the judgment-debtorhad not been made a respondent to the writ application as required bySection 763 of the Civil Procedure Code. Therefore he moved that thoapplication for execution be refused and the writ bo recalled. On theprevious day, that is to say on 14th August, the Fiscal had seized on thiswrit 3908 bushels of paddy and lorry bearing Ho. C. L. 5148 belonging tothe judgment-debtor. . These goods were pointed out to the Fiscal bythe. judgment-creditor for seizure. On 16.8.’51 the Counsel for thejudgment-debtor supported the application for recall of writ and thelearned District Judge made order recalling the writ and directed thejudgment-debtor to pay the Fiscal’s charges, if any. He further directedthat notice of the application for recall of writ be issued on the judgment-creditor. On the same day the Fiscal on receipt of the order. recallingthe writ reported to Court that 3908' bushels of paddy and lorryNo. C. D. 514S had already been seized and asked fer instructions as towhat should be done regarding the seizure, and the learned DistrictJudge on the same day made the following order :—
“ Tho property seized to bo released on giving security.” Ho securityhowever was tendered by the judgment-debtor and the propertycontinued to remain under seizure.
. The matter of the application for recall of writ came up for inquiryon 11^9. ’51 and the learned District Judge made his order on 18.9. ’51that tho order of 9.8.’51 to issue writ had been made.per incuriam anddirecting* the Fiscal to release the property from seizure on paymenton the Fiscal’s charges. The point which came up for considerationat that inquiry was, which was filed earlier, the petition of appeal or thoapplication’ for* writ. ' The case for the judgment-creditor was that whenthe application for writ was tendered to the Secretary of the Court noappeal had yet .been filed and the Secretary supported the' judgementcreditor' on this point.' . On the other hand, it waVcontended on'behalf .of the judgment-debtor, that the petition of . appeal was tendered first
and it was minuted in the journal earlier than the application for writ.The learned District Judge held that the journal entries represented thecorrect sequence of events and 'made order recalling the writ. Therewas no'appeal from that order which is now binding on the parties.
In the present action the claim for damages was based on two groundsnamely (1) that the seizure was illegal on the ground that the judgment-debtor was not made respondent to the writ application and (2) that thepresent defendant acted maliciously and unlawfully and without reason-able or probable cause in obtaining the seizure. The learned District-Judgo held-that the plaintiff had failed to establish malice and thattherefore damages could not be claimed on that ground. That findingis supported-by the evidence and wp,s not canvassed in appeal. Thelearned District Judge,. however, held that the defendant in havinggot tho property soizecl on a writ, that was void ub initio was liable indamages without proof of any malice on his part. It is contended onbehalf of the appellant that the learned District Judge erred on thelaw in holding that the defendant became liable in damages in the■absence of proof of malice on his part. That in an application foroxecut-ion for a decree which is appealed against it is imperative thatthe judgment-debtor should be made respondent is admitted. Theprovisions of Section 7CB G. P. C. are clear cn that point. In the earlieraction when the application for execution was made on 9.S.51 thejudgment-debtor was not made respondent to that application, althoughan appeal had already been taken by him against the judgment. Thewrit obtained on that application, it is contended on behalf of the plaintiff,was not merely irregularly issued but issued without- jurisdiction. It.is argued on behalf of the plaintiff that the judgment of the Privy Councilin Jiarnanathan Ckelly v. Meera Sahibo Marilyn-1 is authority for theproposition that a seizure on a writ issued without jurisdiction rendersthe party, at whose instance this seizure is effected, liable in damageswithout proof of malice. In that case Their hardships cf the PrivyCouncil stated,-
“ A distinction must be drawn between acts done without judicialsanction and acts done under judicial sanction improperly obtained.If goods are seized under a writ or warrant which authorized theseizure, the seizure is lawful, and no action will lie in respect of theseizure unless the person complaining can establish a remedy by somesuch action as for malicious prosecution. If, however, the writ orwarrant did not authorize the seizure of the goods seized, an actioilwonld lie for damages occasioned by the wrongful seizure withoutproof of malice.”
Mr. Ivumarasingham who appeared for the defendant appellant con-tended that this judgment of the Privy Council supported him. Accordingto him, the writ in question is not one issued without judicial sanctionbut a writ which was improperly obtained. Therefore he submittedthat proof of malice was essential for the plaintiff to succeed. On thispoint the observations of Socrtsz A.C.J. in Eduard r. de .Silva 2 arc very
illuminating. In that ease lie was dealing with a writ similar to the oneunder review. Dealing with the rules of procedure relating to the issueof writs he said,
Some of these rules arc so vital, being of the spirit of the law, of thevery essence of judicial action, that a failure to comply with themwould result in a failure of jurisdiction or power to act, and that wouldrentier anything done or any order made thereafter devoid of legalconsequence. The failure to observe other rules, less fundamental,as pertaining to the letter of the law and to matters of form would notprevent the acquisition of jurisdiction or power to act, but would involveexercise of it in irregularity.” He held that a writ which failed to complywith the requirements of section 7U3 fell into the category of a writissued without jurisdiction. In coming to that view he relied on twoIndian eases decided by the Privy Council—Itajunalh Das v. Sundra DasK/telvi 1 and Makar Jun r. XahariIn Rajunalh Das v. Sundra Dassection 24S of the Indian Code of Civil Procedure came up for considera-tion. The provisions of that section required that a certain partyshould have been served with a notice calling upon him to show causewhy the decree should not be executed against him, before obtainingexecution against him. The judgment-debtor had failed to do this.Pord Parker in that case observed, “ A notice under Section 24S isnecessary in order that Court should obtain jurisdiction. ” If I maysay so, with respect, I agree with the view expressed by Soertsz A.C.J.in Ddicard• v. de Silvaa. The resulting position therefore is that theplaintiff's goods were seized on 14.S.’51 on a writ which the Court hadno jurisdiction to issue. A writ issued without jurisdiction cannot beinvested with judicial sanction. Seizure effected on that writ was illegaland the plaintiff is entitled to recover damages without proof of maliceon tlic part of the defendant.
I would now proceed to consider the question of damages. The sumof Ps. 12,72G awarded as damages to the plaintiff was made up asfollows :—
Rs.
Expenses incurred in gc-tt ing the seizure released..300
Shrinkage of paddy during .'59 days at Rs. 25 per day. .975
Doss c-auscd by non user of lorry for 39 days. .1,25 l
Doss of trade and prospective gain from 14.S.’5I to
21. 9.’5L at Ps. 250 per day. … 9,750
The plaintiff gave evidence stating that he incurred the expenses andsustained the losses referred to above. Xo evidence was led on behalfof the defendant to contradict the testimony of the plaintiff on this point.The learned District Judge held that the damages claimed were notexcessive and allowed the plaintiff’s claim.
1 A. I. P. 1914 P. C. 129.2 I. L. n. 2.J Bombay 333.
3 {194-5) 40 X. T,. B. 342.
The learned District Judge however overlooked the fact that on16.8. ’51 ho had ordered the seizure to bo released on the present plaintiffgiving security. The security X take it would be the amount due underthe decree namely Rs. 42,802-50 with legal interest thereon from 5.4. ’50.Although this order was made, the present plaintiff failed to furnish thesecurity and obtain the release of the property. The President of theplaintiff Society has stated that security was not given because theSociety between 16. S. '51 and 21.9. ’51 did not have the sum of Hs. 41,000to be utilized as security. He however admitted that there was a sumof Es. 15,000 on 16.S.’ol in the bank to the credit of the Society. Thissum of Es. 15,000 could not be drawn without a resolution of the Com-mittee. In fact it would ajvpenr that security has to be sanctioned bythe Committee and approved by the Registrar. There is no evidencewhether or not a resolution was passed by the Committee authorizingthe furnishing of security. The President has merely stated that theRegistrar did not approve of giving security in Es. 14,000. It is theduty of the plaintiff to take all reasonable steps to minimise the damages.In this case the plaintiff Society does not appear to have taken sufficientaction to furnish the security. It is reasonable to hold that if adequatesteps were taken to obtain the necessary money for the purpose of givingsecurity the plaintiff could have got the property released within two.weeks. The value of the paddy alone which was seized was overRs. 30,000. To the credit of the Society there was a sum of Es. 15,000in the bank. Therefore if the Society so desired it would not have beenimpossible for it to have obtained the necessary money to give the security.Accordingly it would bo fair in my view to restrict the damages claimedunder items 2, 3 and 4 for a period of 14 days only. I would thereforefix the damages that the plaintiff is entitled to recover as follows :—
Rs.
TOC o "1-5" h z
Item 1Item 2Item 3Item 4
… .300
. .. .350
. .. .44S
. ….2,500
Total .3,59S
To this sum of Es. 3..503 I would add a further amount of Es. 402 onaccount of flic expenses in raising the required security and perfectingthe same. Pet judgment be entered for the plaintiff in the sum ofEs. 5,000 with costs in that class. The plaintiff would pay half the costsof this appeal to the defendant appellant. Subject to this variation theappeal is dismissed.
Sw.ax, J.—I agree.
Decree varied.