084-NLR-NLR-V-51-KANAGASABAI-Appellant-and-BALASUNBRAMANIAM-Respondent.pdf
PULLE J.—Kanagaaabai v. Balasubramaniam
334
1949Present: Nagalingam J. and Pulle J.
KANAGASABAI, Appellant, and BALASUBRAMANIAM,Respondent.
5. C. 424—D. C. Paint Pedro, 10,271.
Civil Procedure Code—Writ returned partly satisfied—Application for extension ofr«tumabfe date ten years after date of decree—Power of court to grant it—
" Subsequent application "-—Section 337.
When a writ is returned partly satisfied and, after the expiration of ton yoorafrom the date of the decree, application is made to extend the returnable datethe question whether it is a “ subsequent application ” within the meaningof section 337 of the Civil Procedure Code has to be determined according to thefacts of each case.
Quaere, whether the power which a court has of re-issuing a writ which hasl>een retumod unexecuted can be exercised after the expiration of ten yearsfrom tho dote of decree.
A
-APPEAL from an order of the District Court, Point Pedro.
C. Chellappah, with A. Nagendra, for defendant appellant.
H. Wanigatunga, with S. Sharvananda, for plaintiff respondent.
Cur. adv. vult.
November 30, 1949. Pulle J.—
The first defendant-appellant in this oase is the judgment-debtoragainst whom a decree was entered on Decomber 16, 1937, for paymentof a sum of Rs. 1,706, interest and costs of suit. The first applicationfor writ was made on July 8,1947, and on that application being alloweda writ was issued on February 10,1948, made “ returnable ” on February10, 1949. The question for determination in this appeal is whetheran order made by the learned District Judge on April 6, 1949, for there-issue of the writ, amounts to a grant of a subsequent application forexecution after the expiration of ten years from the date of the decreeand is, therefore, obnoxious to the provisions of section 337 of the CivilProcedure Code.
Before dealing with the submissions of law, it is necessary to state ingreater detail the events that took place between the date of the writ,namely, February 10, 1948, and the date of the order from which thisappeal is taken.
It would appear that on the authority of the writ various sums of moniesrepresenting the salary of the appellant for the months of Maroh toDecember, 1948, were seized and deposited in Court. The writ wasreturned to Court by the Fiscal with the endorsement dated February 11,1949, " The writ is returned by lapse of time ”. In tho meantime onJanuary 13,1949, the plaintiff’s Proctor moved that the writ be re-called,extended and re-issued to enable the plaintiff to recover tho balanceamount due from the appellant. An order was made that tho applicationshould be made after the return of the writ. If the plaintiff thought
PULLE J.—Kanagaaabai v. Battuiibratnaniam335
that it was essentia! to his application that the returnable date of thewrit should be extended before February 10, he ought not to haveacquiesced in the order that his application should be made after the returnof the writ.
After the writ was returned to Court, that is, on March 23, 1949, theplaintiff's Proctor filed an application for the further execution of thedecree on Form No. 42 in the First Schedule to the Civil Procedure Code.'There are two matters to be noted in this application. First, it set outthe steps taken by the Proctor on January 13, and the order made thereon.Secondly, it prayed “ that the writ winch has been returned to Court bytho Fiscal partly executed owing to lapse of time be re-issued for furtherexecution by seizure and, if necessary, by the sate of tho movable andimmovable property of the 1st defendant The application wassupported by an affidavit from the plaintiff which stated, among otherthings, that he had on the previous application exercised all possibleand due diligence to realise the amount due on the decree. On March24, the learned District Judge made order refusing the application onthe ground that it was made ten years from the date of the decree. OnApril 5, the plaintiff’s Proctor asked for an opportunity to support hisapplication and asked that the matter be fixed for hearing on April 6,as that was the last date on which, he said, he should appeal from theorder made on March 24. Plaintiff’s Proctor was heard on April 6, andthe Judge made the following order :—
“An application was made for extension of time on 13.1.49. Thepresent application is virtually an application for extension of time.In the circumstances I vacate my order of 24.3.49 and allow theapplication for re-issue of writ ”.
On April 21, the writ whioh had previously been returned was extendedand re-issued, returnable on April 20,1950. On May 5,1949, appellant’sProctor submitted that the re-issue of writ was barred by section 337and moved that it be recalled. Argument was heard on the 13th May andon the 8th June, 1949, the learned District Judge made order decliningto interfere with his order of the 6th April allowing the application forre-issue of writ. The present appeal is from this order.
It is not disputed that it is competent for a Court to extend the timewithin which a writ is returnable. Hence it was within the discretionof the District Judge on plaintiff’s application dated the 10th Januaryto extend the returnable date. It is also not disputed, having regardespecially to the Divisional Bench case of Andris Apjm v. Kolande Asari,1that a writ of execution returned to Court may under certaincircumstances be re-issued. Now the argument for the plaintiff is that theapplication for writ having been made on the 8th July, 1947, and allowed,the writ dated 10th February, 1948, and its extension and re-issue alldraw their efficacy from the first application of the 8th July, 1947.In other words, the re-issue was not in pursuance of a subsequentapplication within the meaning of section 337 of the Code.
I do not think that the position taken up by the plaintiff is tenable.The numerous authorities cited do not give any clear guidance on the» (1916) 19 N. L. R. 225.
PULLS J.—Kanngasabai v. Balasubramaniam
question whether the power which a Court has of re-issuing a writ whichhas been returned unexecuted can be exercised after the expiration often years from the date of decree. The proper approach to the problemis, in my opinion, to ascertain on the facts of each case whether the stepstaken, alter the return of a writ, to recover the whole or the balance ofthe judgment debt constitute a “ subsequent application There aretwo aspects of the application of the 24th March, 1949, which indicatethat it is in every respect a subsequent application. The first is the formof the application which gives the various particulars required by section224 and the second is the statement in the affidavit which accompaniedthe application that on the “ previous ” application due diligence wasexercised to realise the amount decreed. Section 337 clearly shows thatthe exercise of due diligence is a condition precedent to the grant of asubsequent application. It is nowise associated with the first application,however late it may be made. To hold, as the learned Judge has done,that the application of the 24th March is only a continuation of the firstapplication without possessing an identity of its own is to ignore both thesubstance and the fonn of the second application. In judging whetherthe second application is independent of the first, it is immaterial thatthe mode in which the Court’s assistance was required was by re-issue ofthe writ which had been returned to Court. What has primarily to beconsidered is whether there has been a grant of the application. There-issue of the writ is a result which flows from the grant of the application.
In my judgment plaintiff’s application of the 24th March, 1949, isbarred by section 337. I would, therefore, set aside the order appealedfrom but in all the circumstances of the case there will be no cost? ofappeal.
Nagai.ingam J.—I agree.
Order set aside.