052-NLR-NLR-V-10-ELIYAPILLAI-et-al.-v.-MURUKESU.pdf
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Present: Mr. Justice Wood Benton.
ELIYAPILLAI et ah t>. MUBUKESU.
C. B., Point Pedro, 7,028.
Writ—Be-issue—'“ Dmdiligence "—Plea ofpayment—Executionstayed
at the instance of the debtor—Civil Procedure Code,219, 387, and
349.
Delay in the enforcement of a writ and the failure to takeproceedings under section 219 of the Civil Procedure Code create apresumption of want of due diligence on the part of the judgment*creditor; but it is a presumption chat may be rebutted by otherevidence.
The judgment-debtor may set up the pleas of payment and wantof due diligence to an application for execution, there being nonecessary inconsistency between the two pleas.
A
PPEAL from an order of the Commissioner (W. G. Vallipuram,Esq.) refusing an application for execution.
The facts sufficiently appear in the following judgment of theCommissioner: —
“ The decree in this case is dated 22nd January* 1900; writ ofexecuti&n was issued on 4th April, 1900. In his return dated 10thApril, 1901, the Fiscal reported: * Demand of payment was notmade, as the debtor was absent at Vavuniya. No property waapointed out or surrendered. Writ has expired by effluxion of timeand is returned to Court/
" According to affidavit now filed by the heirs of the judgment-creditor the judgment-creditor died in . September, 1904; that isfabout 3£ years after*the date of the Fiscal's return. During theseyears.no steps whatever were taken by the judgment-creditor.
• ‘1 The present application made by the heirs (substituted-plaintifEs)of the judgment-creditor is dated 14th August, 1906; that is, abouttwo years after the deatlTof the judgment-creditor. No reasonwhatever has been shown in their affidavit for the delay in makingthis application for execution.
“ In his answering affidavit the judgment-debtor has pleadedsettlement of the judgment amount during .the judgment-creditor’slifetime. He has raised no other objection.
“ It has been urged by counsel for the substituted plaintiffs thatevidence will be led to prove that on the last .occasion the writ was-stayed at the request of the judgment-creditor, that fraud wasperpetrated by him, and that all due diligence was exercised. Thesereasons, however, have not been set out in the affidavit filed by the-substituted plaintiffs. I do riot, therefore, think that I ^ieed proceedto hear evidence on these points.
“ It is clear that the judgment-creditor took no steps whatever'onthe first, issue of the writ to have the debtor examined under section219, Civil Procedure Code, and it cannot therefore be said that he
1907.
July 17.
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1907.
July 17.
used due diligence to secure complete satisfaction of the decree ascontemplated by section 337, Civil Procedure Code. It does notmatter whether .the debtor was in his village or away at Vavuniya,bpt the question is whether the judgment-creditor did take anysteps to have the debtor examined. So long as the judgment-creditortook no steps to fulfil this requirement, I think the substitutedplaintiffs are not entitled to this application being allowed.
“ Palaniappa Ghetty v. Gomes 1 is, I think, in point. The applica-tion is disallowed, but I give no costs to the judgment-debtor, sincethe application has failed for a reason other than .that pleaded byhim in his affidavit/1
The substituted plaintiffs appealed.
J. de Saram, for the substituted plaintiffs, appellants.
Balasingham, for the defendant, respondent.
Cur. adv. Vult.
17th July, 1907. Wood Renton J.—
In the present case Mr.’Balasingham urged all that could be saidin support of the decree appealed against; but I have come to theconclusion that it must be set aside. It would appear that theplaintiff obtained judgment against the respondent for a sum ofRs. 100, interest, and costs so far back as the 22nd January, 1900,and that writ of execution was issued on the 4th April in the sameyear. In the return to that writ the Fiscal reported on the 10thApril that demand of payment had not been made since the debtorwas absent at Vavuniya, and no property was pointed out for seizure.In September, 1904, the judgment-creditor died; and, so far as theevidence shows, no steps seem to have been taken either in theinterval from the date of the Fiscal's return up to his death orin fact till the 14th August, 1906, when the plaintiff-appellantsapplied to be substituted as his heirs for the purpose of the enforce-ment of the judgment decree. It was held by the learnedCommissioner of Requests that, inasmuch as the appellants’ affidavitin support of their present application for the re-issue of the writdisclosed no reasons for the delay in its enforcement, and also asthere had been raised a plea of payment on the part of the judgment-debtor, who had at no period been examined as to his propertyunder section 219 of the Civil Procedure Code, the re-issue ought notto be allowed. In my opinion this decision cannot be supported.It appears from the record that on the argument of the present« application the appellants' counsel asked leave to addvce evidencefor the purpose of showing that the non-execution- of the writ* hadbeen due to the request of the judgment-debtor himself, that he hadheld himself fraudulently out of the reach of process, and thatunder all the circumstances there had been no lack of due diligence■on the part either of the original judgment-creditor or of his heirs,
i (1895) 1 N. L. R, 356.
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the present appellants. It was urged before me by Mr. de Saraxnwhen this came first on for argument that in view of the decision ofthe Supreme Court in the case of Veerasamy v. Tambifillai1it was incompetent to join the two defences, viz., that of paymentand want of due diligence in procuring satisfaction of the writ setup by the execution-debtor, inasmuch as the two pleas are contra-dictory. In the recent case, however, of D. C., Galle, No. 4,299,awhich is not yet reported, it was held by my brothers Wendt andMiddleton, and I entirely agree myself with the decision, that thereis no necessary inconsistency between the two picas to which I havereferred; for the plea of payment only brings matters up to the dateof the payment, and it must still be open to the judgment-debtor toallege that there has been a lack of due diligence since that date.In the present case, however, it was clearly within the right of theappellants to prove the facts on which they rely. It was, of course,competent for the Commissioner, if he thought that there was anydanger of the other side being taken by surprise, in view of thedefective nature of the appellants1 affidavit, to postpone the pro-ceedings to such time and on such terms as to costs or otherwise ashe thought fit. It may clearly be conceded that the delay in theenforcement of the writ creates a presumption of the absence of duediligence (see the cases of Scmgarapulle v. Tangam8 and SellappaGhetty v. Kamdiak4). It is clear also that the failure of thejudgment-creditor to take proceedings under section 219 creates apresumption against him (see Palaniappa Ghetty v. Gome# <mdothers5). But it is only a presumption (see case of Silva v. Ahvis*),and it is the duty of .the Court conducting an investigation into thecircumstances under which the re-issue of the writ is claimed, tohear all the evidence that the applicant can put forward in supportof his claim. It is a duty which was all the more incumbent on theCourt in the present case in view of the fact that, in spite of theallegation of payment, no payment had been certified in conformitywith the provisions of section 349 of the Civil Procedure Code,which, although it applies primarily to the execution-creditor, appliesalso to the judgment-debtor (see Sellappa Ghetty v. Kandjahalready referred to, Bristol Hotel Co.t Limited, v. Power,7 anSLetchvmaium v. Sanmugam et al.*) In the present case I set asidethe decree appealed against, and send the case back for inquiry andadjudication. The appellants will have the costs of the presentappeal, buj it seems to me that the costs of the original proceedingsshould abide® the event, in view of the unsatisfactory character of *their*petition in support of the application for the re-issue of^ the writ.
Appeal allowed; case remitted.
(1897) A N. L. ft. 57.5 <1895) 1 AT. L. ft. 356.
S. C. Min. 27th February, 1907.* (1907) App. Court Reports‘ 102.
? (1904) 4 Tambiah 163.f (1894) 3 5. C. ft. 168.
4 (1904) 4 Tambiah 171; 2 Balastngham 61. e (1903) 8 N. L. ft. 121.
1907.
July 17.
WoodBenton, J.