033-NLR-NLR-V-19-MACKWOOD-&-CO.-v.-PERERA.pdf
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Present: Shaw A..C.J. and Schneider A.J.
MACKWOOD & CO. v. PERERA.
43-j—D. C. Colombo, 35,OSH).
Subsequent application for execution for costs not included in firstapplication.
There is nothing in our Code which prevents a subsequentapplication for execution for costs if the amount has not beenascertained on the first application.
fjp HE facts are set out in the judgment.
A. St. V. Jayewardene, for appellant.
Bartholomeuse, for respondent.
June 14, 1916. Shaw A.C.J.—
On August 18, 1916, a final decree was entered against the appellantfor Rs. 3,373.79, interest, and costs. On August 26 the respondentapplied for execution of the decree by the issue of writ against theappellant’s property. At this time the costs of an appeal by theappellant to the Supreme Court had been taxed, but the costs in -the District Court had not. The application for execution containedthe particulars required by section 224 of the Civil Procedure Code,and stated that the District Court costs had not been taxed, but theSupreme Court costs had been taxed at Rs. 464.
The writ issued to the Fiscal on August 27 to recover “ the sumof Rs. 3,373.79, with interest thereon at 9 per cent, per annum fromSeptember 10, 1912, till payment in full, and costs, which theplaintiff has recovered against the defendant. ” The amount of thecosts was not mentioned in the writ, as indeed it could not be, as theamount was not "then ascertained, and the practice appears to befor the District Court to notify the Fiscal before sale and aftertaxation what the amount of the costs to be recovered is.
In the present case the amount of the judgment-debt and interestwas tendered to the Fiscal, and he accepted it and made return tothe writ.
On December 20, the costs then having been taxed, the DistrictCourt ordered a new writ to issue for the amount. The appellantmoved to recall the' writ, but the Judge refused, and from his refusalthe present appeal is brought.
The appellant contends that' the judgment-creditor cannot splithis claim so as to recover by separate writs first the amount of the
1916.
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1916.
Shaw A.C.
Maokwood8b Co. v.Perera
judgment-debt and by the second the costs, and cites as an authority. Harris v. Jewell,1 showihg that in England, before the JudicatureAct, 1870, and the rules made thereunder, if a judgment-creditorissued execution before the cost were taxed, he was held to havewaived his right to costs.
I do not think the old English practice has any application here,or that we should go out of our way to revive here a practice thatwas found to be a bad one and expressly altered' in England.
There appears to be no direct authority here on the point beforeus, nor has any case under the corresponding Indian section beenref erred to but I find the Court in Radha Kishen hall v. RadhaPorshad Sing 2 saying, “ when a decree gives relief of a differentcharacter, such as a decree for possession and a decree for costs, wesee nothing in the Code of Procedure which prevents successiveapplications for execution as regards each of them. " I see nothingin our Code which prevents a subsequent application for executionfor costs if the amount has not been ascertained on the first applica-tion, but the point hardly arises in the present case, as the first writto the Eiscal- did direct him to recover the costs. The respondentnot having ■ obtained full execution of his decree on the first writ,and having been guilty of no want of due diligence, is entitled to anew writ, under section 837, for the amount not recovered.
I would dismiss the appeal with costs.
Schneider A.-J.—I agree.
Appeal dismissed.
l (1888) W. N. 216.
2 18 Cal. 517.