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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wendt.
ENSOHAMY v. MABICAR.
D. C., 'Matara, 2,455.
Execution, application for—Order thereon—Res judicata.
An order allowing an application for execution of decree, afternotice to tbe defendant, is conclusive of the rights of the parties asat the date of the order, and operates as res judicata between them.
PPEAL by the plaintiff from an order of the District! Judge ofMatara. The facts sufficiently appear in the judgment of
thd Chief Justice.
A. St. V. Jayewardene, for the plaintiff, appellant.
E. H. Prins, for the defendant, respondent.
Cut. adv■ vvlt-
April 8, 1908. Hutchinson C.J.—
This was an application by the defendant to certify payment of. the judgment debt. Judgment was obtained by consent in March,1900, for Rs. 399, with interest and costs. On July 6, 1900, writ ofexecution issued. The defendant alleges that he paid the debt inDecember, 1900, and he produces a receipt dated December 20,1900, purporting to be signed by the plaintiff, and to be a dischargein full of principal, interest, and costs, except proctor’s fees. OnJune 27, 1901, the writ was returned, and the sale stayed at therequest of the creditor. In June, 1902, the plaintiff applied forwrit to be re-issued. November, 1902, similar application to recoverRs. 459.76. January, 1908, the plaintiff applied for notice on thedefendant to show cause why writ should not issue against him forRs. 459.76. Notice was duly served on defendant for February 21.On February 21, 1903, the defendant was absent, and executionordered to issue. March, 1903, fresh writ ordered to issue forRs. 459.76. September, 1906, the plaintiff having died, his widowobtained notice on defendant to show cause why she should not besubstituted plaintiff. November, 1906, plaintiff and defendantbeing present and no objection made, the motion for substitution ofplaintiff was allowed. January, 1907, notice on defendant to showcause why execution should not issue. February 23, defendantsaid he had cause to show. Case fixed for March 9. March 9,defendant absent; order for writ to issue. Then in August thedefendant made this application. The District Judge said that theissue is, whether the receipt produced by the defendant is genuine
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or not, and he decided that it is genuine. But there is the furtherquestion which was raised, and which the Judge does not refer to,whether the defendant can prove any payment made before theorder of March, 1907. Tn my opinion the orders made for issue ofexecution for Rs. 459.76 in February, 1903, and March, 1907, are ares judicata between the parties, and the defendant cannot beallowed now to prove that the judgment debt was satisfied beforethe date of the order of March, 1907. I would therefore dischargethe order of the District Judge, with costs in both Courts.
I am of the same opinion. I think' we must regard the two ordersfor the issue of execution against the defendant as conclusivelysettling the rights of the parties at their respective dates.
ENSOHAMY v. MARICAR