060-NLR-NLR-V-22-ISMAIL-v.-ISMAIL.pdf
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1020.
Present: Bertram C. J. and De Sampayo J.ISMAIL v. ISMAIL.
139—D. C. Tangalla, 1,841.
Contempt of Court—Decree to effect repairs—Failure to effect repairs—
Action for damages for not complying with decree—Civil Procedure
Code, ss. 334 and 344—Courts Ordinance, as. §1 and .59.
In a previous case defendant* was ordered to execute certainrepairs to a boiler within two months. This order-was not compliedwith, and the District Court punished defendant for contempt,and subsequently plaintiff brought this action against defendantclaiming damages.
Held, that the District Court had no authority to punish forcontempt under the circumstances.
Non-compliance with the judgment of a Court is not in ordinarycircumstances a contempt of Court, nor has. the District Courtpowet to punish summarily contempts of its authority, unless theyare committed in the face of the Court. Other contempts mustbe brought to the notice of the Supreme Court.
Held, further, that the action for damages was not maintainable.The provisions of the Civil Procedure Code providing for theexecution of decrees and orders were intended to be exhaustive,and it is not competent to a party who has obtained a decree to en-force thatdecree by a separate action. Where an action is broughtin a case where the appropriate procedure is an application, theCourt has power to deal with the action as though it were anapplication, provided the Court before which the action is broughthas jurisdiction to deal with the application if it had been madein due course.
PJTHE facts appear from the judgment.
J. 8. Jayawardene, for the appellant.
Drieberg, for the respondent.
November 24, 1920. Bertram C.J.—
This is an appeal against an order of the Distriot Judge ofTangalla, made with reference to a point of law, which it was thoughtdesirable to determine, in the first instance, before the action washeard. The question was, whether the action was maintainable,and the learned Judge held that it was maintainable. It wasbrought with reference to a previous action, in which, on an appealbeing taken to this Court, the defendant was ordered to execute
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certain repairs to a boiler within two months of the payment by 1920.the plaintiff of a certain sum into Court. This order was not n^complied with, and the plaintiff then made an application to the qjCourt, drawing the attention of the Court to the non-compliance, Ja~£vand this application was dealt with by the Court on the footingthat it was Well-founded; non-compliance with the Court’s judg-ment was in the nature of contempt, and phould be summarilypunished for contempt of Court. It now appears that these vproceedings were wholly misconceived. Non-compliance with thejudgment of a Court is not, in ordinary circumstances, a contemptof Court. Nor has a District Court power to punish summarilyoontempts of its authority, unless they are committed in the faoeof the Court (see section 59 of the Courts Ordinance). Otheroontempts must be brought to the notice of the Supreme Courtunder section 51. The parties, therefore, and the Court overlookedthe fact that the proceedings were inappropriate, and that the lawhad expressly provided for the case in question by section 334 ofthe Civil Procedure Code. Oblivious of this fact, the Court madean order against the defendant, punishing him for contempt, and,subsequently, the plaintiff brought this action against the defendant,claiming damages.
It has been pointed out in a previous decision of this Court, •RamenChetty v. Frederick Appuhamy,1 that the various provisionsof the Civil Procedure Code providing for the execution of decreesand orders were intended to be exhaustive, and that it was notcompetent to a party who has obtained a decree to enforce thatdecree by a separate action. That decision applies wholly to thepresent case. It has also been suggested that section 344 of theCivil Procedure Code, which declares that all questions arisingbetween the parties to an action and relating to the execution ofa decree shall be determined by order of the Court executing thedecree, and not by separate action, covers this case. It is notnecessary in this case to determine whether that is a correct inter-pretation of section 344. But it appears that under the corre-sponding section in the Indian Code of Civil Procedure, before therecent changes that have been made in that Code, it was held, that,where an action had been brought in a case where the appropriateprocedure waB an application, the Court had power to deal Withthe action as though it were an application, provided that the Courtbefore which the action was brought would have had jurisdictionto deal with the applicaton if it had been made in due course. Inthe case of Biru Mahata v. Shyama Chwn Khawaa 2 the Courtsaid: “ We have been asked to refer the plaint in this suit asan application made to the Court executing the decree, the suit'having been instituted in the same Court has had jurisdiction toexecute the deoree. We think that this view may be accepted, as
1 (1906) 9 N. L. R. 133.
8 (1S95) 22 Coi. 483.
1620.
Bbbtbam
C.J.
Ismail v.Ismail
( 1M )the suit does not fail for want of jurisdiction, and the fact that theplaintiff has made bis application in the form of a suit may beregarded as a merely formal defect which has done nobody anyharm, except himself, as.he had paid a higher Court fee than heneed have paid.”
. Whether or not this case comes within section 344, the principle .laid down in the Indian cases, one of which I have just cited, isa salutary one, and may Well be applied to the present circumstances.^The question which the Court had to decide was whether the actionwas maintainable. The judgment of the Court that it was main-tainable would appear to be erroneous. But it is open to -us,*nevertheless, to grant the relief which was granted in the Indian.case* and the only question for us-is, on what terms the relief shouldbe granted. I think that the order of the District Judge shouldformally be set aside, and that the case should be remitted to him,to be dealt with as though it had been an application under section334. I think that the appellant is entitled to the costs of theseproceedings both in the Court below and in this Court, and that, all*costs in the matter, apart from those I have just mentioned, shouldbe taxed on the basis of the proceedings being an apphcationundeir.section 334, and not a separate action.
De Sampayo J.—I agree.
Sent back.