024-NLR-NLR-V-46-H.-C.-FERNANDO-et-al.-Appellant-and-M.-THAMBIRAJA-Respondent.pdf
JAYETILEKE J.—H. C. Fernando and M. Thambiraja.
81
1943Present : Jayetileke J.
H. C. FERNANDO et al., Appellant, and M. THAMBIRAJA,Respondent.
237—C. R. Negombo, 4,5,321.
Execution—Application■ for writ more than one year after decree—Notice todefendant—Application by petition—Civil Procedure Code, s. 347.
Where more than one year has elapsed between the date of the decreeand the application for its execution the failure to give the defendantnotice of the application for writ renders the execution proceedingsvoid and of no effect.
The provisions of section 347 of the Civil Procedure Code requiringapplication by petition and notice of it to the defendant must be strictlyfollowed.
A PPEAL from an order of the Commissioner of Requests, Negombo.
D. S. L. P. Abeyesekere for defendants, appellants.
S. N. Rajaratnam (with him S. P. M. Rajendram) for the respondents.
Cur. adv. vult.
8 Times Reports 71.
82
JAYETILEKE J.—H. C. Fernando and M. Thambiraja.
February 9, 1945. Jayetileke J.—
This is appeal by the defendant from an order dismissing herapplication to have a sale held by the Fiscal set aside. On September 2,1942, the plaintiff obtained a decree against the defendant for a sum ofBs. 45 and costs payable by monthly instalments of Rs. 3. The defendantpaid thirteen instalments and defaulted thereafter. On March 27, 1944,the plaintiff applied for and obtained an order for a writ of execution,for the recovery of the balance amount due to him on the decree withoutnotice to the defendant. The application is in tabular form No. 42 inSchedule II of the Civil Procedure Code. On June 27, 1944, the Fiscal'put up for sale a land belonging to the defendant and the second respondentpurchased it for a sum of Rs. 15. The question .that arises for for considera-tion is whether the failure to give the defendant notice of the applicationfor writ renders the execution proceedings void. Section 347 of .the Civil-Procedure Code provides that where more than an year has elapsedbetween the date of the decree and the application for execution theapplication shall be by petition, and that when no respondent is namedin the petition of application for execution the Court shall cause therpetition to be served on the judgment-debtor. Beale on Cardinal Rules-of Legal Interpretation says at page 375, 3rd Edition : —
“ When a statute declares that something * shall ’ be done, thelanguage is considered imperative, and the thing must be done ; where-the word ‘ may ' is used, the language is, as a general rule, permissive ”.In Perera v. Novishamy *, Schneider J. pointed ou.t that the procedure-indicated in this section must be strictly followed. In Ran Menik Etanav. Appuhamy 2 where an application to certify payment under section 349- of the Civil Procedure Code was not made by petition, as required by thesection, it was held that the procedure must be strictly followed beforepayment can be recognized. In the present case there is, in addition tothe defect in the form of the application, the fact that no notice of theapplication was given to the defendant. The legislature has, presumably,provided for notice to be gjven to the judgment-debtor in order to givehim an apportunitv of showing cause against the issue of writ or payingthe amount due on the decree. Had the defendant been served withnotice of the application it is, at least, probable that she would have paidthe amount due having regard to the fact that she has brought it intoCourt when she made the present application.
The effect of the failure to give notice under section 248 of the IndianCode of Civil Procedure of 1882, which corresponds with section 347 ofour Code, has been considered in several cases. In Gopal ChunderChatterjee v. Gunamoni Da^i 3 Norris J. said : —
“ I am of opinion that the issuing of the notice required by section-248 of the Code of Civil Procedure is a condition precedent to theexecution of the decree against the representative of the deceasedjudgment-debtor ”.
29 N. L. S. 242.* 24 N. L. S. 357.
» J. L. R. 20 Cal. 371.
The King e. BaUMriya alias Wadu Balaya.
S3
Tn 8adhro Pandey v. Gasiram Gyawal 1 Ghose and Gordon JJ. in theirjoint judgment said :—
“ And we are of opinion that the whole of the proceedings com-mencing with the application of April 7, 1892, are altogether bad byreason of no notice under s. 248 having been issued upon the judgment-debtor and the judgment-debtor having had no opportunity to showcause why the decree should not be executed, it seems to us that theeale at which Palakdhari purchased the property cannot be sustained.The matter that has been complained of in this case is not one ofirregularity but one of illegality, if we may say so, and if the whole ofthe proceedings were altogether bad and ineffectual so as to bind thejudgment-debtor, it is obvious that anything done by the Court in thecourse of the execution that was taken out against the judgment-debtormust fall through
The same view was taken by the Privy Council in the case of RagunathDas r. Sunder Das Khetri *. Lord Parker said : —
“ As laid down in Gopal Chunder Chatterjee v. Gunamoni Dasi[supra) a notice under section 248 of the Code is necessary in order thatthe Court should obtain jurisdiction to sell property by way of executionas against the legal representative of a deceased judgment-debtor
These cases were cited with approval in Kannangara v. Perics ~ whereDrieberg A.J. said : —
“Notice is required in the interest of parties against whom executionis sought, and the absence of notice makes the execution proceedingsvoid as against them and not merely voidableWith the views expressed by the learned Judges in these cases I respect-fully agree. The sale in question is, in my opinion, void and of no effect.I would accordingly allow the appeal with costs here and of the inquiryin the Court below.
Appeal allowed.