032-SLLR-1988-V2-LEELANANDA-V.-MECRCANTILE-CREDIT-LTD.pdf
LEELANANDAV.
MERCANTILE CREDIT LTD.COURT OF APPEAL
WUETUNGA & ANANDACOOMARASWAMY. J
AVI. A. APPLICATION NO. 28/88 WITH C.A. 281/88
C. COLOMBO CASE NO. 86797/M .
JULY 11.1988
Civil Procedure — Execution — Civil Procedure Code, s. 347 and Rule 49 of theRules of the Supreme Court — Computation of one year.
Ex parte judgment was entered on 15.03 84 against the 3rd defendantpetitioner seeking revision and a copy of it was served on him on 22.02 1985On 25.04.1985 the District Judges directed writ to issue against the petitionerOn or about 17.12.1986 the petitioner fcught to set aside the seizure and asuspension of execution proceedings as 6ne year had lapsed between the dateof decree and the application for execution.
Held:
The year should be computed from the date of the valid executable decreeAlthough judgment was entered on 15.03.84 there was no valid decree until thelapse of 14 days from the date of service of the decree The period of one yearunder section 347 C.P.C. should be computed from the date of a validexecutable decree.
The provisions of section 347 are directory and not mandatory and in theabsence of prejudice or injustice by the issue of writ after one year withoutnotice the Court will not interfere.
flute 49 of tho Supreme Court- rules had not been complied withbecause though court ordered notice to issbe 30.03.88 returnable 05.05.88the, notice was tendered after 05:05.88. Compliance with Rule 49 rsimperative, and non-compliance is fatal.
Application for revision of the order .of the District Court. Colombotkram Mohamad for petitioner
Chula da Silva for respondent.„….
Cur adv. vuft.
July 27, -1988
ANANDACQOMARASWAMY. J
This is an application by way of Revision to revise the orderof the Learned District Ju.dge dated 11.03.88 and to set asidethe seizure of the property of the petitioner effected on theapplication made by the Plaintiff-Respondent on 25.04.85.Counsel for Petitioner and' Respondent moved that both theRevision application No 281/88' and C.A.L.A. 26/88 be takentogether, Accordingly we heard both the applications together.
Them are two matters to be decided on the application
.Whether a notice under section 347 of the Civil ProcedureCode had to be issued in this case before the writ can be
executed.
Whether these applications before this. Court had to berejected for noncompliance with Rule 49 of the Rules ofthe Supreme Court.
The facts, relevant to these matters, are set out below:— Anexpa'fte judgment was entered against the 3rd: Defendant1Petition^ {hereinafter referred to as Petitioner) on 15. 3. 84and a copy of the decree was served on. the Petitioner on22 02,85- On 25.. 04. 85 the District Judge directed that writbe isstieid against the Petitioner. The Petitioner on or about 17.12. 86 sought to set aside the seizure and. to suspend-theexecution proceedings on-the ground that no notice had beengiven to the. Petitioner although according to him one(.T-) yearhdd lapsed between the date of decree and the application forits execution.
lrt-orde,r to compute the period of one (1) year, one has toexamine whether, one (1) year has passed between a date ofvalid executable decree and the application for it's execution.On V.5.03.84 ajthough . exparte judgment was enteredagainst the Petitioner there was no valid decree uotil after thelapse of 14 days from the date of the service of the expartedecree, if the period is to.be computed as from the date of ex-parte judgment then in a case where the decree is Served onthe judgment -debtor after a lapse of one (1 > year from the dateof ex-parte judgment there should be in every such case anotice issued before ah order to issue the writ is made, eventhough an application for writ is made soon after the decree isserved This is meaningless and therefore the period.of one (-1)year should be computed from the date of a valid executabledecree. The word decree in section 347 means an executabledecree and any other interpretation would mean that section347 would become meaningless in relation to ex-partejudgment.
In the instant case decree was served on 22. 02. 85 andapplication tor writ was made on 25. 04. 85, and therefore nonotice in terms of section 347 is necessary.
in any event provisions of section 34 / are directory and notmandatory and the Court ought not to interfere where theparty had not shown prejudice or that injustice has beencaused to him. In the ihstan.t case there is no averment that thePetitioner was prejudiced or.injustice has been caused to himby the issue of writ.without notice.
On the 2nd question it is quite clear that Rule 49 had notbeen complied with, in that although this Court on 30.03.88directed notice to be issued on the Respondent returnable05.05.88 the notice in fact was tendered after 05.05.88
This Court in an unreported case of . PiyasenaGangodagedera v. Mercantile Credit Limited (C.A.1 304/87D C.Colombo, No. 93714/M held that, provisions of Rule 49are imperative in nature and call for strict compliance andfailure to comply with such a mandatory requirement is fatal tothe application.
The Petitioner has hot submitted any explanation as regardshis failure to comply with the Rule and therefore -theRespondent is entitled to succeed on this ground also
For the foregoing reasons we disimiss these applicationswith costs.
WMETONGA. J.- I agree
Application dismissed.