Rodrigo v. Weerakoon
Present: Basnay&ke, C.J., and Pulle, J.K. D. RODRIGO et al., Appellants, and D. H. WEERAKOON et al..
S. C. 445—D. C. Panadura, TK.. 310/23,558
Execution of decree—Application for writ more than one year after decree—Service ofnotice on judgment debtor—Imperative requirement—Civil Procedure Code,s. 347.
Where more than one year has elapsed between the date of a decree and theapplication for its execution, the provision in section 347 of the Civil ProcedureCode that the Court shall cause the petition to be served on the judgment*debtor is imperative and not merely directory. Non-observance of the require-ments of section 347 by the Court would render the proceedings void.
Silva v. Havanihamy (1948) 50 N. It. It. 52, not followed.
-aTXpPEAL from a judgment of the District Court, Panadura.
H. W. Jayewardene, Q.G., with C. de S. Wijeratne and P. Eanasinghe,for Plaintiffs-Appellants.
Walter Jayawardene, with P. Somatilakam, for 7th and 8th Respondents-Respondents.
1 3 Bing. N. C. 29.
BASNAYAKE, C. J.—Rodrigo v. WeeraTcoon
July 15, 1957. Basnayakb, G.J.—
This is an appeal by the 1st plaintiff, a minor, (who appears by hisnext friend the 2nd plaintiff), in a partition action in which lot 12 inextent 7 acres, 1 rood and 24 8 perches was allotted to him. In thepartition decree he was also condemned to pay a sum of Rs. 55 in theresult to the 2nd and 6th defendants in equal shares and also pro ratacosts of the action to the 6th defendant. Final decree was entered onthe 28th of August 1948 and on the 26th of October 1951 the 6th defendantapplied for writ of execution against the plaintiffs. The application hasnot been made in conformity with section 224 of the Civil ProcedureCode and the plaintiffs have not been named as the respondents to thepetition nor has the court as required by section 347 of the Civil Pro- .cedure Code caused the petition to be served on the judgment-debtor.The Fiscal, in pursuance of the writ which was issued, proceeded to theresidence of the judgment-debtor as required by section 226 of the CivilProcedure Code, and not finding birr) there proceeded to seize and selllot 12 which was allotted to the plaintiff. The land was sold for a sum ofRs. 1,525 and was purchased by the 2nd defendant. Thereupon theplaintiffs took steps to have the sale set aside on a number of groundswhich were urged at the trial but which were not upheld by the learnedtrial Judge.
Of the points taken in appeal the only point which seems to be ofsubstance is that the provisions of section 347 of the Civil ProcedureCode have not been complied with. That section requires that wheremore than one year has elapsed between the date of the decree and theapplication for its execution, the court shall, cause the petition to beserved on the judgment-debtor. It is a rule of interpretation of statutesthat enactments which regulate the proceedings in courts are usuallyimperative and not merely directory. In the instant case the failure tocomply with the provisions of the Statute has not been on the part of oneof the parties to the proceedings hut on the part of the court itself, andthe question for decision is whether the non-observance of the require-ments of section 347 by the court would render the proceedings void.The rule governing this aspect of the matter is stated in Maxwell on theInterpretation of Statutes at page 380 —•
“ The same imperative effect seems, in general, presumed to beintended even where the observance of the formalities is not a conditionexacted from the party seeking the benefit given by the statute, but aduty imposed on a court or public officer in the exercise of the powerconferred on bim when no general inconvenience or injustice calls for adifferent construction.”
In the instant case the failure to comply with the provisions of section 347of the Civil Procedure Code has resulted in 7 acres of land allotted to theminor plaintiff being sold at a price disproportionate to the market valueof the land, clearly resulting in injustice to him.
Learned counsel for the appellants has referred us to the decisions ofthis Court as to the construction of section 347 of the Civil Procedure
BASNAYAKFi, C. J.—JDov&y v. Inspector of Police, JDehitoela
Code. In the ease of de Silva v. TJpasdka Appu 1 and Fernando et al. v.Thanibiraja 2 it was held that the failure to comply with the requirements-of section 347 of the Civil Procedure Code is fatal. He has also drawn,out attention to the case of Silva et al. v. Kavanihamy et al. 3, where ithas been held that the provisions of section 347 of the Civil ProcedureCode are merely directory and that the failure to serve the petition asrequired by that section is only an irregularity. We find ourselvesunable to agree with the view taken in the last named case and we preferthe view taken in the cases mentioned earlier that the requirements ofsection 347 of the Civil Procedure Code are imperative and that thefailure to comply with them is fatal.
We therefore set aside the order of the learned taial Judge and allowthe appeal. The appellants are entitled to costs both here and in thecourt below.
PttXiLE, J.—I agree.