MAHAMADO v. IBRAHIM

017-NLR-NLR-V-02-MAHAMADO-v.-IBRAHIM.pdf


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18«6.
June 19 and21.
MAHAMADO v. IBRAHIM.D. C., Galle, 2,398.
Injunction—Power of Supreme Court to grant it—Money paid undersanction of Court—Garnishee order under s. 230 of the CivilProcedure Code—Courts Ordinance, s. 22.
A held aa assignment from B of a mortgage bond granted by Ito B to secure payment by I to B of a certain sum of money.M, a creditor of B, obtained in an action brought by him a moneydecree against B, and had a summons .under section 230 of theCivil Procedure Code served on I, calling on him to show causewhy he should not pay M the sum which he owed M’s debtor, B,on the bond. I, who had notice of the assignment in favour ofA, showed no cause, and order was made that he should pay into;Court the said sum. He failed to do so, and M thereupon obtaineda writ against I, and had the property mortgaged by him. to Bseized and advertised for sale. A then moved the Court to havethe writ recalled. The motion was disallowed, and A appealed.Pending the appeal he applied to the Supreme Court for aninjunction to restrain the sale of the property seized underM’s writ.
Held, that he was not entitled to it, as no irremediable injury waslikely to result from the act sought to be restrained, A, in thecircumstances, still having his right to recover from I the amount-due to him on the assignment.
There is no inherent pow'er in the Supreme Court to issueinjunctions. Its jurisdiction to do so is restricted to the casesreferred to in section 22 of Thte Courts Ordinaice ; and the specialcircumstances in which such jurisdiction is to be exercised are(1) that irremediable mischief would ensue from the act soughtto be restrained; (2) that an action would lie for an injunction'in some Court of original jurisdiction ; and (3) that- the plaintiffis prevented by some substantial cause from applying to that Court.
It is a well established principle that the law will not compel aperson to pay a sum of money a second time which he has paidalready under the sancton of a Court of competent jurisdiction,but a person seeking to benefit by this principle must have doneall that was incumbent on him to resist the payment.
facts of the case appear in the judgment.
Layard, A.-G., Dornhorst and Wendt, for applicant.
21st June, 1895. Bonser, C.J.—
Cur. adv. vult,
This is an application made ex parte by petition for an injunc-tion to restrain the Fiscal of the Southern Province from selling' certain immovable property which has been seized by himunder a writ of execution in an action of Mohammadu v. Ibrahim,No. 2,368, District Court of Galie, and from further proceeding
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with the said execution pending the decision of an appeal whichhas been lodged by the applicant.
As I was informed that no injunction had been granted by thisCourt for many years past, I reserved my decision in order thatI might make further inquiry as to the practice of this Court insuch matters. This Court has by its constitution no originaljurisdiction in civil matters, but section 22 of The Courts Ordi-nance, 1889, which repeats the language of the Court Charter,provides that “ the Supreme Court or any Judge thereof shall be“ and is hereby authorized to grant and issue injunctions to pre-“ vent any irremediable mischief which might ensure before the
party making application for such injunction could prevent the“ same by bringing an action in any original Court.”
It is to be observed that this is primd facie a limited power,very different from that given by the Judicature Act of 1873 tothe English Supreme Court of granting injunctions “ in all cases“ in which it shall appear to the Court just or expedient” to do so.
It was suggested by the Attorney-General that there is aninherent power in this Court to issue injunctions, but I am unableto agree with that suggestion, and in my opinion the jurisdictionof this Court is restricted to the cases referred to in section 22 ofThe Courts Ordinance. If such an inherent power existed, therewould surely be somp instances of jts exercise to be found, butthe practice of this Court lends no support to such a theory. Ifind that in 1859 in Baly’s case, 3 Lorenz 244, the Full Court indelivering judgment stated that no injunction had been grantedsince 1837, and only cases could be found before that of which thereports were too meagre to ascertain on what principle they weregranted. The injunction was refused in that case, and there isno instance to be found of one hawing been granted since thatdate, or even applied for.
It would appear, therefore, that the power of granting injunc-tions is a strictly limited one to be exercised only on special grounds,and in special circumstances, (1) where irremediable mischiefwould ensue from the act sought to be restrained; (2). an actionwould lie for an injunction in some court of original jurisdiction ;and (3) the plaintiff is prevented by some substantial causefrom applying to that court. The history of this case is brieflyas follows:—
One Ismail brought an action in the Galle District Court againstone Ibrahim and obtained a decree for Rs. 10,000. Under awrit of execution issued on that decree the Fiscal seized and soldcertain property of Ibrahim and paid the proceeds of the sale,amounting to Rs. 3,901‘76, into Court. An appeal was lodged
1898.
June 19 antT21.
Bohseb,O.J.
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1805.
June 10 tend21.
Bonseb.C.J.
against the decree, but pending that appeal the plaintiff Ismailwas allowed to take the Rs. 3,901 ‘76 out of Court on giving .securityfor the repayment of the same whenever ordered.
Accordingly on 27th February, 1894, Ismail gave a mortgagebond to the secretary of the Court binding himself to pay theamount into Court whenever ordered, and hypothecating the land,the sale of which is now sought to be restrained, as security forsuch payment. The appeal was successful and the decree reversedby the Supreme Court. Following on that reversal an. orderwas made by the Galle Court on the 24th July, 1894, orderingthe plaintiff Ismail to pay the Rs. 3,901'76 into Court within onemonth. This order has never been obeyed. On the 7th August,1894, Ibrahim assigned this sum and the right to recover it to theapplicant, and notice of the assignment was given to Ismail, andon the 29th May, 1895, the security bond was assigned by thesecretary of the Court to the applicant.
In the meantime judgment had been recovered against Ibrahimby one Mohammadu in the Galle Court in the action No. 2,398,for Rs. 11,194, and the Fiscal on the 26th February, 1895, pro-ceeded to seize the said sum of Rs. 3,901 • 76 on the footing of itsbeing a debt due by Ismail to Ibrahim by issuing a notice to Ismailunder section 229 of the Civil Procedure Code, and on the 29thMarch, 1895, Mohammadu tyok out a summons under section230 of the Civil Procedure Code calling on Ismail to show causewhy he should not pay the Rs. 3,901'76 to Mohammadu. Onthat summons an order was made on Ismail to pay the moneyinto Court within the following month of April. Ismail failingto obey this order, Mohammadu obtained a writ of executionagainst Ismail, and under the writ the Fiscal seized on the 18thMay the hypothecated land. On the 11th June the applicantmade an application in action 2,398, to which he was no party, tohave the writ recalled, and the various orders made in that suitset aside for irregularity. This application was refused on 13thJune. Against that refusal he has lodged an appeal. It is pendingthat appeal that he seeks an injunction. The land is advertisedfor sale on the 21st June, and this application was made on the19th June.
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The first point on which the applicant has to satisfy the Courtis that irremediable mischief will be the necessary, or at all eventsthe highly probable, result of the sale being allowed to proceed.That he endeavours to make out in some such way as this. Hesays’ that if this land is sold under this writ of execution he willlose the benefit of his hypothecation and be without remedy. Hishypothecation will, he says, be gone, although of course the Fiscal
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will only sell subject and without prejudice to it, because the 1895.satisfaction of Mohammadu’s claim by the proceeds of the sale June 19 andwill be equivalent to payment by Ismail under compulsion of law ^•of the debt of Rs. 3,901 • 76. So that Ismail cannot be made to pay Bomber, C.J.it over again, and the case of Rwmbold v. Robertson, 47 L. J. G.
294 was cited. No authority is needed to establish the proposi-tion that the law will never compel a person to pay a sum ofmoney a second time which he has paid already under the sanctionof a Court of competent jurisdiction.
But the person seeking to benefit by this principle must havedone all that was incumbent on him to resist the payment. Hemust have been really compelled by law to make the payment,which cannot be said of him when by his default he allows anorder to be made against him which ought not to have been made.
In the present case Ismail, at the time when he was called uponto show cause why he should not pay the Rs. 3,901 *76 to Moham-madu instead of to Ibrahim, had notice of the assignment of thedebt by Ibrahim to the applicant, and knew that Ibrahim was nolonger the owner of the debt. Had he stated that to the Courtwhen he was called on to show cause, the order to pay to Moham-madu would not have been made.
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It is almost the indentical case put by the Court of ExchequerChamber in Wood v. Winn, L. R., 2 Q. B. 82:“ This case,
“ therefore, shows that if the present defendants [i.e., Ismail]
“ had notice of the fresh deed [i.e., the assignment of the debt]
“ at the time or after the ex parte order of attachment [i.e., the“ notice issued by the Fiscal under section 229j was served upon“ them, and before the time for showing cause, they would have had“ good cause to show, and the order for payment could not have“ been made, and we think that there can be no doubt that in that“ case the proper course to take would be to show cause, and if the“ garnishee [i.e., Ismail] were to pay instead of showing cause“ the assignee [i.e., the applicant] could recover against him.”
The principle of that case would, in my opinion, apply where, ashere, the garnishee, instead of paying the money to avoid execution,allows the writ to be executed. In neither case can he be properlysaid, to have paid under compulsion of law. It is his own faultfor not showing cause when he had good cause to show.
And even were it otherwise, the case cited does not show, nordoes any other case so far as I know, that the applicant will beprecluded from recovering the money from MohaCmmadu if hereceives it without having a title to it. The cases show that thegarnishee is protected if he acts properly from having_to pay overagain, but not that the person who ought not to have received the
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1895.
June 19 and21.
Bonsbr, C.J.
money is entitled to keep it. And I read section 352 of the CivilProcedure Code as being to the same effect.
The plaintiff has therefore failed to satisfy me that he will sufferany serious damage if the sale is allowed to proceed, much lesssuch irremediable damage as would' justify the interference ofthis Court.
This is sufficient to dispose of this application, but I doubtwhether the applicant is in a position to prove the existence ofthe other two conditions which I have pointed out as -beingnecessary to justify the granting of an injunction.
Moreover, the delay from the 12th June, when his applicationwas dismissed, to the 19th, when his application was made, has notbeen satisfactorily explained.
The application is refused.
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