GURUSAMY PULLE v. MEERA LEBBE et al

145-NLR-NLR-V-17-GURUSAMY-PULLE-v.-MEERA-LEBBE-et-al.pdf


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Pretent: Pereira J. and Ennis J.GUBUSAMY PULLE v. MEEBA LEBBE et al.
1914.
81—D. G. (Inty.) Chilaiv, 3,888.
Fiscal's sale—Sale in execution—A seizure under on old time-expiredwrit cannot be availed of for sale tn execution under a new writ—Fiscal or execution-creditor to move for extension of time if salecannot be carried out within time allowed—Inherent power of Courtto extend time.
in the case of every writ issued on an order made on an applica-tion under section 224 of the Civil Procedure Code there should be aseizure. A seizure under an older time-expired writ cannot beavailed of for the purposes of execution.
When a writ cannot be executed within the time allowed forexecution by the Court, the proper course is for the Fiscal or theexecution-creditor to move for and obtain an extension of timerather than for the Fiscal to return the writ to Court and to securea re-issue thereof.
The Court has an inherent power to extend the time fixed for theexecution of its own process.
A
PPEAL from a judgment of the District Judge of Chilaw(W. B. B. Carbeiy, Esq.).
In this case one Sina Wana Panjawarana Pulle sued the presentpetitioners, (1) Kawenna Segu Meera Lebbe and his wife (2) Path*-umma Natchia, upon a promissory note. Decree absolute wasentered against them with costs on April 3, 1908. On April 14,1906, the plaintiff moved for and got out writ. On June 9, 1908,writ was returned to Court, with the report that no property waspointed out.
On July 21, 1908, the plaintiff moved for a re-issue of the writ,which was allowed on fresh stamps. Nothing further appears tohave been done until September 20, 1911, when Mr. Pandittesekerafiled his proxy as proctor for S. W.' Gurusamy Pulle, the present(respondent) appellant, his petition, and affidavit, together with adeed of assignment No. 1,386, and moved for an interlocutory order,in terms of section 377 (6) of the Code, on the petitioners to showcause why Gurusamy Pulle should not be substituted plaintiff inplace of the original plaintiff Panjawarana Pulle.
This order nisi appears to have been issued and .re-issued severaltimes with negative results, until on April 24, 1913, Mr. Panditte-sekere filed an affidavit horn B. M. M. V. Venaithilan Chetty, theattorney of Gurusamy Pulle, and moved that the order nisi beaffixed to the last known place of residence of the two judgment-debtors (present petitioners-respondents). This was allowed. On
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1914.May 21, 1913, the order nisi was reported served on them by
0urusamy substituted service—they were absent—and the order nisi wasPvUe «. made absolute.
On May 29, 1913, the first petitioner filed an affidavit, and movedthat decree may not be executed until an inquiry is held into thematter referred to in the affidavit. On this the Court made order:“ Affidavit insufficiently stamped/* That was the only order made.On July 17, 1913, the substituted plaintiff (now respondent) filedhis bill payable by the judgment-debtors, and issued notice of taxa-tion for September 19, 1913. Notice of taxation was served on both.
On December 5, 1913, Mr. Pandittesekera, for the substitutedplaintiff, applied for writ, and moved that substituted plaintiff'staxed costs be added to the amount of the writ. This was allowedon fresh stamps.
Writ issued on January 17, 1914, and under this writr the DeputyFiscal sold certain lands belonging to the judgment-debtor, the salerealizing Es. 2,140. On April 1, 1914,. Mr. Storer filed prosy fromthe judgment-debtors and their petition and affidavit, and movedfor an order nisi against the substituted plaintiff-respondent asprayed for in the petition, in terms of section 344 and section 377 ofthe Civil Procedure Code.
The prayer of the petitioners in their petition was for an ordernisi on the respondent to show cause why the writ issued in thiscase should not be recalled and all proceedings in execution there-under (including the sale) be set aside and declared void, and whyfurther proceedings in execution against the petitioners should notbe disallowed.
The learned District Judge made order recalling the writ ofDecember 5, 1913, §nd setting aside all proceedings in execution-thereunder, including the sale, and further refused the applicationof December 5, 1913, to execute the decree on the ground that theplaintiff had not exercised due diligence on the previous issue ofthe writ.
: The substituted 'plaintiff appealed.
Bawa, K.C., for the substituted plaintiff, appellant.—The DistrictJudgewas wrong in holding that a new seizure was necessary underthe writ issued on January 17, 1914. The properties were alreadyunder seizure when the writ was issued, and it was not necessary toseize the properties over again., The properties were seized undersection 237 of the Civil Procedure Code.
The. notice of prohibition issued on the judgment-debtor is inform No. 50 in the schedule to the Civil Procedure Code. TheFiscal gives notice in these terms: “That;you, the defendant, arehereby prohibited and restrained until the further order of theCourt from which execution in the said: action issued from m. anyway transferring the property •.
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The seizure so effected continues till the seizure is removed in the 1M4.manner indicated by section 239. It is not therefore necessary to ^Irntmnrjseize the properties every time the writ is re-issued, unless in the PuO«v.meantime the seizure is removed in the* manner indicated by Jtfeefa Lebbesection 239.
It was held in Letchimanen Ghetty v. Muttusarnypillai1 that whereonce a property is sequestered under a mandate of sequestration,and where pending the sequestration another judgment-creditorof the same debtor had placed in the hands of the Fiscal a writagainst the same debtor’s property with a request to seize the saidgoods, that the placing of the writ of execution in-the hands of. theFiscal ipso facto amounted to a valid seizure. In other words, it washeld that once the property is under seizure, it was not necessary forthe Fiscal to go through the formality of seizing the property underevery subsequent writ in the manner indicated in section 226.
The authority on which the District Judge relies was questionedby De Sampayo A.J. in Yapahamine v. Weerasuriya.2 It will cause'great inconvenience if a Fiscal has to go through all the formalitiesevery time a writ is re-issued. If, for instance, a person is arrestedunder a warrant for a civil debt on the last day on which the writis returnable, and the Fiscal is unable to take the debtor to Courton that day itself, it will be a curious state of things if the Fiscal hasto release the debtor. It will lead to great hardship if the ruling inPatheruppillai v. Kandappen 3 is to be followed. The provisions ofsection 226 apply only when a writ is issued for the first time.
The respondent should have brought a separate action to have thesales set aside. He cannot proceed under section 344.
Balasingham, for the petitioners (defendants), respondents.—
Every time a writ is issued it is the duty of the Fiscal to make ademand from the debtor as directed by section 226. The debt mayhave been greatly reduced between the first issue of the'writ and theSecond issue. The law could not have intended that where «property is seized for Bs. 1,000 under a writ issued for the first time,it should be sold without a further demand from the debtor on asecond writ, say, for Bs. 5, the bidance having been paid up in theinterval. If, then, a demand is necessary every time a writ is issued,it cannot be contended that .the other provision of section 226 carrbe ignored, with the provision that it is the duty of the Fiscal toseize the property of the debtor,
Section 237 nowhere says that the judgment-debtor is not totransfer the property “ until the further order of the Court. ” These'words occur only in the form No. 50 given in the schedule to theCode. Section 239 only provides for the removal of the seizurebefore the expiry of the writ.
(1914) 17 N. L. B. 183.
(1913) 16 N. L. B. 998.
' (1908) U N. L. B. 83.
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4914. Section 239 is not exhaustive of the ways in which a seizure may
be terminated. Abandonment is mentioned by De Sampayo A.J.
in Yapahamine v. Weemsuriya 1 as one of the ways in which a seizureMetro Lebbe may be terminated. The words in form 50 can be reconciled withthe words in section 237 only if we take the words of the notice torefer to a prohibition against alienation during the life of the writ.
Section 661 of the Civil Procedure Qpde enacts that where propertyis sequestered before judgment and decree is given for the plaintiffit shall not be necessary to seize the property as a preliminary tosale. This special enactment is unnecessary if the law is thatonce the property is seized it need not be seized against under aire-issued writ.
It was held by the Full Court in Wijewardene v. Schubert 2 thatwhere a writ is recalled a seizure made under it comes to an end.
Section 319 would appear to make special provision for the casewhere a judgment-debtor is arrested on the last day on which thewarrant expires. See The Attorney-General v. Ponniah. 2
Counsel cited Puddomonee v. Boy Muthroonath, 4 Thooboo Lakoo v.Bam Chum Boy.5
' Bawa, K:C.., in reply.—The abandonment to amount to a removalof seizure should be express (17 Mad. 180). Wijewardeam v. Schubert2may be distinguished from the present case: There the Court itselfrecalled the writ. It does not follow from the fact that a demandis necessary every time a writ is issued, that a new seizure is alsonecessary.
Counsel cited 15 W. R. 222, 7 Taunton 56, 7 M. & G. 240, 247. •
• Cur. adv. vult.
September 30, 1914. Pereiba J.—
In this case the principal question argued in appeal was whetherin. the execution of a writ duly issued on an order allowing anapplication under section 224 of the Civil Procedure Code a seizureof property on an older time-expired writ could be availed of. Ihave so fully gone into the point in my judgments in the cases ofYapahamine v. Weerasuriya 1 and Patheruppillai v. Kandappen, 6 thatit is not necessary that I should give my reasons at length here.Having heard fuller argument, I see no reason whatever to doubt the■correctness of my decisions in those two cases, and I am furtherconvinced that the two Indian cases of Puddomonee v. Roy Muthroo-nath4 (judgment of the Privy Council) and Thooboo Lahoo y. BamChum Roy 5 are in point on the question above referred .to. Ofcourse, there is a difference between execution proceedings under theIndian Code of Civil Procedure and those under our Civil Procedure
i (1914) 17 N.L. R. 183.» (1906) 10 N. L. R. 90.a (1908) U N. L. R. 24$.
4 20 W. R. 133.
6 11 W. R. $17.
8 (1913) 16 N. L. R. 298.
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Code. In India it is the Court that executes its own decrees. With 1914.us the work is largely delegated to the Fiscal. In India an attach-,t_
ment of the debtor’s property is first moved for by the creditor
and allowed by the Court, and then, similarly, an order for saleof the attached property is moved for and obtained by the execution- Mwra Lebb*creditor. The principle underlying the Indian cases cited above isthat when a judgment-creditor moves for and obtains an attach-ment of his debtor’s property, and subsequently of his own accordmoves for and obtains a second attachment, treating the firstas non-existent, ' then the first must be presumed to nave been'abandoned. The present is, indeed, a clearer case of abandonment.
The plaintiff on the first writ taken out by him had certain propertyof the debtor seized, Nothing was done on that seizure for overfive years. There was no applications to the Court for an extensionof. the time allowed for the execution of the writ. The time given forexecution expired, and the writ was returned to Court, and more-than five years after, a fresh writ was moved for and obtained.
This action of the plaintiff' clearly amounted to an abandonment ofthe old writ, and even in the absence of express legislation on thesubject, it was necessary that there should be a fresh seizure- on thenew writ. But apart from the question of abandonment, there isexpress legislation on the subject under consideration. The secondwrit was moved for and obtained under section 224 of the Code.
On the allowance of an application under that section- the Codeprovides in paragraph 3 of section 225 that a writ of execution inform No. 43 in the schedule should issue, and what the Fiscal- has todo on; a writ so issued is laid down in section 226. He (or his officer)should repair to the dwelling-house of the debtor, and require him.to-pay him the amount of the writ ; and, secondly, he should, in defaultproceed to seize and sell property of the judgment-debtor.
The mandate to the Fiscal contained in the writ itself is to “ levyof the property of the debtor by seizure and sale, ” &c. Theappellants’ counsel in the course of his argument conceded, that on-receiving the new writ the Fiscal or his officer was bound to repairto the debtor’s residence and demand payment. If he was bound todo that, it seems to me to be illogical to say that he was not boundto follow the direction as to seizure immediately following in the-same section.
It has been suggested that my ruling in the cases cited above maylead, to inconvenience where the execution of' a writ cannot becompleted within the time fixed therein. I see no reason for anyinconvenience at all, because in such a case the- plain remedy is forthe Fiscal or the execution-creditor's proctor, before the expirationof the time already allowed for the execution of the writ, to apply tothe Court and obtain from it an extention of the time, and proceedwith the further execution of the writ. Every Court has the-inherent power to extend 'the time for the execution of its own
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1014. .proeess. Beal inconvenience and hardship would result from apBBBZBAja seizure being deemed to continue to exist for an indefinite period—■of time after the process to which it owed its existence has become
effete and ineffectual.
Meera Lebbe ^ ^ag ajdo been argued by the appellants' counsel that the Courthas no power to cancel the sale in execution, or rather to declare itvoid in a proceeding under section 844 of the Code, but that a freshregular action was necessary for that purpose. This contention isfully met by the decision of this Court in the case of Perera v. Abey-ratna.1 Of course, this Court has more than once held that aFiscal's sale without a proper seizure is hot simply voidable, blit isde facto void (see Bastian Pidle v. Anapillaii 2 3).
Execution appears to have been allowed by the Court by an orderinter partes dated the 21st May, 1913. I would, therefore, do nomore than affirm the District Judge's order declaring the sale underthe second writ null and void, and give* the appellant an opportunityof applying for a fresh writ on notice to the respondents.
As the respondents succeed on the main question in issue, I thinkthey, should have their costs in both Courts.
Ennis —
I agree. The main question in this case is whether on a secondapplication under section 224'of the Civil Procedure Code a newseizure of the property is necessary.
Section 225 provides for the issue of a writ for seizure and sale inexecution of a decree, and section 238 provides that any privatealienation of immovable property after it has been seized, and theseizure registered, shall be void as against claims enforceable underthe seizure until the seizure is removed. Section 239 prescribes aprocedure for the withdrawal of the seizure on satisfaction of thedecree.
It was argued that a seizure once made under section 224 remainseffective until withdrawn under section 239. In my opinion thematter should be approached from another point of view, viz., thata withdrawal under section 239 is only possible where the seizureis of full force and effect, and the question is whether the seizurecan be terminated otherwise than by withdrawal.
The case of Wijewardene v. Schubert3 is a Full Court decision, thatthe recall of the writ issued under section 224 terminates the seizure;and the Indian case Maharajah Dheeraj Mahahbat Ghund Bahadoor v.Sumo Moyee Dossee4 and the Privy Council case Puddomonee Dosseev. Roy Muthooranath Ghowdry5 are authority for the proposition thata seizure may terminate by abandonment.
i (1912) 15 N. L. R. 414 ;
2C. A. C. 55.
*(1901) 5 N. L. R. 165.
(1906) 10 N. L. R. 90.
15 W. R. 222.
20 W. B. 133
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The authority under which the Fiscal holds the property seized 1914.under section 224 is the writ. When the writ has been returned, to
Court after seizure, but before the sale, the Fiscal’s authority to hold
th& property terminates. Section 661 haB been cited against thisproposition, but it does not seem to me to be in point, as the writ to Meera Lebbethe Fisoal in a sequestration before, judgment is a writ to seize andsequester, a writ which is fully complied with by the Fiscal byseizing and holding the property under the writ.
The writ under section 224 is to seize and sell, and where theproperty is not realized by sale before the time or extended timewithin which the Fiscal is directed to bring the proceeds into Court,,cannot be enforced under that seizins. It seems to me that thereturn of the writ to the Court, when the claim can he no longerenforced, is equivalent, in the circumstances, to a recall of the writby the Court and terminates the seizure.
Affirmed.
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