034-SLLR-SLLR-2005-V-2-IYER-vs-IYER-AND-ANOTHER.pdf
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Sri Lanka Law Reports
(2005) 2 Sri L. R.
IYERVSIYER AND ANOTHERCOURT OF APPEAL,AMARATUNGAJCALA 192/2002,
D. C. PT. PEDRO 17830/LAUGUST 23, 2004.
Civil Procedure Code – Section 219 – Examination of Judgment Debtor -Money Decree – Undertaking given to Court – Violation – Is it contempt ofCourt ?'Inherent powers of Court.
The Plaintiff sought a declaration that he is entitled to perform a certain flaghoisting ceremony and an order to restrain the Defendants from obstructingthe Plaintiff. The matter was settled and the Defendant under took to deposit acertain sum of money in Court. The Defendant did not honour this undertaking.The Plaintiff sought to examine the Defendant under Section 219 which wasobjected to by the Defendant but the trial Judge allowed the application . TheDefendant sought leave to appeal against the said order.
HELD (i) Section 219. is a step in the process of executing a moneydecree. If there is no money decree entered against the Defen-dant, he is not a Judgment Debtor and accordingly he cannotbe examined under Section 219.
The 1st Defendant however by signing the court record hadgiven an undertaking that he would deposit the sum as di-rected.
The Court has the power to inquire as to why the party giving theundertaking failed to honour the undertaking. In the exercise ofthe power court can summon and examine the party concerned.Though the Defendant cannot be examined under Section 219,the order to examine the Defendant was correct as it is anexercise of the inherent power of Court.
An undertaking entered into or given to Court by a party or hisCounsel is equivalent to and has the effect of an order of the
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Court, so far as any infringement thereof may be maid the sub-ject matter of an application to the Court to punish for its breach.‘ The undertaking to be enforced need not necessarily be em-bodied in an order.
When a party has not acted according to an undertaking givento Court the Court has the power to inquire as to why the partygiving the undertaking failed to honour the undertaking – That isan inherent power of Court.
APPLICATION for Leave to Appeal from an order of the District Court of PointPedro.
Cases Referred to :
In Re. P. K. Enso – 62 NLR P 509 at 571
«
V
A. Mutukrishna with Nilanthie Devasinghe for Petitioner.
Ms. C. Rajasingham with Kanchana Nagarajah for Plaintiff Respondent.January 10, 2005Gamini Amaratunga, J.
Cur adv vult.
Application dismissed.
GAMINI AMARATUNGA J.This is an action between the parties who have rights to administrationand management of the Hindu Temple known as Sellasannathy Temple atThondamanaru. The rights of the parties were exercised in rotation, oneparty exercising his rights in one year and another party in another yearand so on. The party having the rights of management in any particularyear has the right to conduct the annual festival that year and the incomederived from the festival belongs to that party and the others who areentitled to shares.
In the year 2000 there was a dispute between the plaintiff and the 1 st,4th, 5th and 6th defendants about who should conduct the flag hoistingceremony for the year 2000. The plaintiff filed this action praying inter alia
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Sri Lanka Law Repons
(2005) 2 Sri L. R.
for a declaration that he was entitled to perform the flag hoisting ceremonyin that year and for an order restraining the 1st, 4th, 5th and 6th defen-dants from obstructing the plaintiff. Whilst this action was pending, theDivisional Secretary negotiated with the parties to bring about a settle-ment. The parties agreed to auction the right to perform the flag hoistingceremony. The 1st defendant was the highest bidder for the light. He wasawarded the right for a sum of Rs. 900,000/-. This arrangement was with-out prejudice to the rights of the*other parties. When this arrangementwas notified to Court, an order was made directing the 1st defendant todeposit in Court a sum of Rs. 900,000/- out of the income derived from theceremony, to be proportionately divided among the parlies at the end ofthe case. The 1st defendant agreed to this and signc-c' the case record.
The 1st defendant sought permission of Court to deposit Rs. 500,000/- in the first instance. Permission was granted to deposit Rs. 500,000/-first and Rs. 400,000/- later. The 1st defendant deposited Rs. 500.000/-but failed to deposit the balance 400,000/-. The first defendant’s positionwas that the ceremony did not yield the income he expected and thattherefore he was unable to deposit the balance sum.
The above is the short factual background which led to the making ofthe order challenged in this appeal. When the 1st defendant’s failure todeposit the balance Rs. 400,000/- continued, the plaintiff moved for per-mission of Court to examine the 1st defendant under section 219 of theCivil Procedure Code. The learned Judge made order permitting the ex-amination of the 1st defendant under section 21 9 of the Civil ProcedureCode. In this appeal the learned counsel for the 1st defendant appellantcontended that section 219 provides for the examination of a judgmentdebtor against whom a money decree has been entered. Section 219 is astep in the process of executing a money decree. The learned counselcontended that since there was no money decree entered against the 1 stdefendant he is not a judgment debtor and accordingly he cannot be ex-amined under Section 219.
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This argument is correct. However consequent to the order made byCourt directing the 1st defendant to deposit Rs. 900,000/- in Court, the 1stdefendant by signing the Court record had given an undertaking to Courtthat he would deposit the sum as directed. “An undertaking entered into orgiven to Court by a party or his counsel is equivalent to and has the effectof an order of the Court, so far as any infringement thereof may be madethe subject matter of an application to the Court to punish for its breach.The undertaking to be enforced need not necessarily be embodied in anorder. In Re. P K. Enso'1 at 571.
When a party has not acted according to an undertaking given to Courtthe Court has the power to inquire as to why the party giving the undertak-ing failed to honour the undertaking. That is an inherent power the Courthas to ensure that undertakings given to it are honoured. In the exercise ofthis inherent power the Court can summon and examine the party con-cerned. In t'he Court finds that the undertaking was not honoured withoutany excuse the Court has the power to punish the party concerned forcontempt.
In the present case when the Court allowed the application to examinethe 1st defendant to ascertain his means and to find why the 1st defen-dant did not honour the undertaking the Court was acting in the exerciseof its inherent power. The only mistake made by Court was to refer to thatexamination as one sanctioned by section 219 of the Code. Though thisreasoning was wrong the order to examine the 1 st defendant was correctas it is an exercise of the inherent power of Court.
Thus there is no merit in this appeal. The appeal is dismissed and theorder to examine the 1 st defendant is hereby affirmed. The 1 st defendantshall pay a sum of Rs. 15,000/- to the plaintiff as costs of this appeal.
Judge of the Court of Appeal.
2 – CM 6556