100-NLR-NLR-V-01-MEERA-SAIBO-v.-SAMARAMAYAKA-et-al.pdf
( 342 )
1896.
January 24and 31.
MEERA SAIBO v. SAMARANAYAKA et al.D. G., Kandy, 94,630.Writ of execution against property—Commitment of judgment-debtor—CivilProcedure Code, ss. 224,337, 347—Fatal itregularities.
Where plaintiff petitioned in terms of section 347 of the Civil Proce-dure Code, after several years had elapsed between the date of thedecree in his favour and the application for its execution, but suppressedthe facts that he had made previous applications for execution of thedecree and levies had been made on his writ, and, nevertheless, hisapplication was allowed,—
Held that, in the absence of any evidence to satisfy the Court, asprovided in section 337 of the Code, that in the last preceding applica-tion due diligence had been used to procure complete satisfaction of thedecree, or that execution was stayed at the request of the judgment-debtor, leave to execute the decree should not have been granted.
Writ against property having issued, and the Fiscal having madereturn thereto that the judgment-debtors neither complied with hisrequirement to pay nor pointed out property for seizure, plaintiff movedfor and obtained a warrant for the arrest of the judgment-debtor, andhad him arrested and committed to prison.
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Held, that, a* the order allowing writ against property had improvide 189(1.emanavit, the writ and the return thereto was nnsoond, as also the T-~r-ry 24warrant of arrest and the commitment of the defendant to prison.and 31
De Silva v. Sella Omma, 2 S. C. R., 155, explained."~—
HIS was an appeal from an order made by the District Judge
of Kandy on the 9th December, 1895, committing to civilimprisonment the appellant who had been arrested under awarrant against person in execution of a decree obtained againsthim on the 27th September, 1884.
The facts of the case are fully set forth in the judgments givenbelow:—
Wendt, for appellant.
Domhorst, for respondent.
Withers, J.—
On the 27th September, 1884, the appellant and anotherof the same name were decreed jointly and severally liable to paythe plaintiff a sum of Rs. 256 with interest till payment in fulland costs.
Writ against property issued thereupon, and on the 11th Nov-ember, 1884, two lands were sold, one for Rs. 46, bought by anoutsider, and one for Rs. 20, bought by the plaintiff, who wasfortunate enough to secure for Rs. 20 a land valued by the Fiscal’sofficer at Rs. 400, and for this he obtained an order of credit.
On the 11th March, 1885, writ against property was allowedto re-issue, accompanied with writ against person, but writ againstproperty was not taken out till the 6th August following, and nowrit against person was taken out at all.
No further steps towards execution was taken till the 22ndMarch, 1889, when plaintiff took out a rule nisi on the judgment-debtor to show cause why judgment should not be revived torecover the balance.
Here the plaintiff stopped and waited till the 4th May, 1891,when he applied for execution of the decree, of which notice wasordered to issue to the defendants, and the 26th May, 1891, wasfixed for the hearing of the application.
The defendants were both in default, and the plaintiff wasallowed to take out execution. His application was made afterthe Code had come into operation, but the petition required by the347th section of the Code did not contain the particulars requiredby the 224th section of the Code.
I cannot find that plaintiff took advantage of the concession toissue writ.
Cur. adv. vult.
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1896. On the 31st Janaary, 1895, he applied to the Court again forS4 *eaTe to execute his decree, bnt in his petition he suppressed a very important particular, viz., (/) in section 224 of the Code,
WlTIII'M T
’ ‘ “ whether any and what previous applications have been made for“ execution of the decree, and with what result.”
The appellant did not appear on notice. His co-debtorappeared in person. The application was allowed; but, lookingat the strict provisions of the 337th section of the Code, thatwhere one application to execute a decree has been made underthe Code and granted, no subsequent application to execute thesame decree shall be granted, unless the Court is satisfied that onthe last preceding application due diligence was used to procurecomplete satisfaction of the decree, or that execution was stayedby the decree holder at the request of the judgment-debtor, Ifeel confident that the Judge was unaware of the application forexecution and the grant in 1891.
Writ was issued,and the Fiscal made return thereto on the 26thJune, 1895, that his officer had repaired to the residence of thejudgment-debtors and required them to pay the amount of thewrit; that neither complied with this requirement; that neitherpointed out property for seizure ; and that his officer was unableto find any property of either debtor, movable or immovable.Upon this return the plaintiff moved on the 10th July, 1895, for awarrant for the arrest of the judgment-debtor, and he was broughtup and committed to prison.
I think this order of committal cannot be sustained. In thefirst place the Fiscal’s return upon which the committal is foundwas made in a writ of execution under an order which improvideemanavit.
The order of the 7th March, 1895, was evidently made inignorance of the application of the 4th May, 1891, to execute theunratified decree, and the grant of that application on the 26thMay, 1891.
That order being unsound, the writ and the return becomeunsound also.
In the next place, I think that the Fiscal’s return to the writ ofexecution mentioned in the 298th section of the Civil ProcedureCode must he his return to the writ of execution originallyissued.
I would have our judgment in case of *De Silva v. Sella Umma(2 S. C. R. 155) so read.
I would discharge the order of the 7th Much, 1895, and theorder committing the appellant to prison.
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31st January, 1896. LAWRIR, J.—
The learned District Jndge on the 5th of November, 1895,stated that he was satisfied that on the last preceding applicationdue diligence was nsed to procure complete satisfaction of thedecree, and he therefore granted the application for execution tore-issne against the person of the judgment-debtors. Against thisfinding and order no appeal was taken. On 28th November theBecond defendant was brought before the Court under the warrantof arrest.
His proctor then objected that the debtors could not legally becommitted because more than ten years had expired Bince thedate of the decree.
The learned Judge repelled that objection, and directed thedebtor to be committed. Against that order this appeal wastaken.
In this case a previous application to execute the decree hadbeen made and granted under chapter XXII. of the Code.
That fact distinguishes the present case from that reported inI S. 0. JR. 307, and brings it within the scope of the judgment in81,658, D. C., Kandy, referred to in the petition of appeal.
It seems to me that the 337th section is applicable, and thatsection enacts that no subsequent application shall be grantedafter the expiration of ten years from the date of the decreesought to be enforced unless the judgment-creditor has by fraudand force prevented the execution of the decree at some timewithin ten years immediately before the date of application. Thedate of decree in this case was 27 th September, 1884.
The application for warrant against person was 10th July, 1895.More than ten years had elapsed.
I am unable to agree with the reasoning of the learned DistrictJudge, by which he has satisfied himself that the 337th section doesnot apply to warrants of arrest against person. It seems to meopposed to the spirit of the enactment, and indeed to its plainwords, and in that I am confirmed by the judgment of this Court(Bonser, C.J., and Browne, Al.PJ.) in the Kandy case alreadyreferred to.
On this ground I am for setting aside the judgment underappeal.
2 Y
1896.
January 31.
VOL. I.