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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wood Benton.
MOBAMADO HANIFA v. LAVENA MARIKAR et al.
Ex parte Omer Lebbe, Petitioner, Appellant.
D. C., Colombo, 11,140.
Assignee of decree—Right of substitution—Right to bring fresh action ondecreet—Discretion, of Judge—Civil Procedit[e Code, s. 899.
The assignee of a. decree is entitled to maintain an action on thedecree against the judgment-debtor.
Ramen Chetty t>. Frederick Appuhami 1 distinguished.
PPEAL from an order of the District Judge of Colombo (J.
Grenier, Esq.) disallowing an application made by the appel-
lant under section 339, Civil Procedure Code, to be substituted onthe record in the place of the judgment-creditor.
The application was made on December 9, 1907, and the facts onwhich it was based are set out in the following petition of theapplicant: —
“1. On April 7, 1898, the plaintiff obtained judgment in .theabove case against the first, second, and fourth defendants for therecovery of the sum of Bs. 2,000, with interest thereon at the rate of9 per cent, per annum, to be computed from March 23, 1898, untilpayment in full, and also the costs.
“2. On May 20, 1898, writ of execution was issued against theproperty of the said first, second, and fourth defendants for therecovery of the said amount, and by sale of the property a sum ofBs. 300 was realized.
“3. By deed No. 7,925 dated May 7, 1900, attested by DonJoseph Kulatunga of Colombo, Notary Public, the said M. I. Moha-mado Hanifa, the plaintiff in .the said case, sold find assigned overto the petitioner, his heirs, &e., all his right, interest, and claim
i (1906) 9 N. L. R. 188.
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1908. upon the aforesaid judgment, and the free benefit and advantageJune 89. thereof,' for the sum of Us. 1,500, with authority to recover andreceive the balance sum of Bs. 1,700, with interest thereon at the' rate of 9 per cent, per annum from March 23, 1898, and costs of suit,which are taxed at Bs. 191.27.
“ 4. The first, second, and fourth defendants have not paid methe said sum of Bs. 1,700, interest, and costs, or any part thereof,and the whole of the said sum of Bs. 1,700, interest, and costs stillremains due to me and unpaid.
“ 5. The petitioner did not take any steps on this to have him-self substituted plaintiff in the- said case as transferee of the saiddecree to recover the said amount, as the said defendants were notthen possessed of any property, but the petitioner is now informedand verily believes that they are possessed of property, and thatthey have the means of paying the said amount and costs.
“ Therefore, the petitioner prays that his name may be substitutedfor that of the plaintifE in the record of the said, decree, for costsincurred in this behalf, and for such other relief, &c. ”
The District Judge disallowed the application, and referred theapplicant to a separate action.
M. de Saram (with him H. Jayewardene), for the appellant.
Van Langenberg, for the respondents.
Cur. adv. vuIt.
June 29, 1908. Hutchinson C.J.—
This is an appeal by the assignee of the decree in the action from anorder dismissing his application to be submitted as plaintiff. Thedecree was made on April 7, 1898, for Bs. 2,000, and interest, to bepaid by .three of the defendants to the plaintiff. The appellant, inhis application to the District Court made on December 7, 1907,and in his affidavit in support of it, says that in May, 1898, a writ ofexecution was issued on which Bs. 300 was recovered; and that bydeed dated May 7, 1900, the plaintiff sold and assigned to him hisinterest in the decree, on which Bs. 1,700 and interest and costs arestill due; and that the reason why he did not take steps sooner tohave himself substituted plaintifE was .that the defendants were notthen possessed of any property, but that he is now informed andbelieves that they are possessed of property. He does not saywhen he was so informed. The fourth defendant filed an affidavit inopposition, alleging that; under the circumstances therein stated,the debt had been fully satisfied, and that the applicant was fullycognisant of the circumstances.
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The District Judge in the order appealed against that the
reason given by the applicant for his delay of more than seven years
appeared very unsatisfactory; that in view of the statements made Hutodnsohin the fourth defendant’s affidavit he did not feel justified inpermitting the applicant to be substituted as plaintiff; that it wasopen to him to bring an action on his assignment, and that that iswhat he should do; that the fourth defendant's affidavit raisedseveral questions of fact, which could be more conveniently decided,upon proper issues, in a regularly constituted action than in theseincidental proceedings.
The appellant contends that the assignee of a decree cannot bringan action on his assignment; that in accordance with the ruling inRumen Ghetty v. Frederick Appuhamy,1 a judgment-creditor oannotbring an action on .his judgment, but must execute it in the mannerprescribed by the fcivil Procedure Code; and that the assignee canhave no other righij than his assignor.
Section 339 of the Code enacts that the assignee of a decree mayapply for its execution, and, if the Court thinks fit, his name may besubstituted for that of the assignor in the record, and the decreemay be executed in the same manner as if the application were madeby the decree-holder. But how if the Court does not think fit? Inthis case the Court did not think fit, and gave a good reason fox1refusing the application. When the Court refuses a writ of executionto a decree-holder, it does so because it holds that he is not entitledto execution, and he cannot try the question whether he is so entitleda second time by bringing an action on his judgment; but when itrefuses an application under section 339, on the ground that themost convenient way of trying the questions that are raised on theassignment is by separate action, I can see nothing in the Code toprevent the assignee from bringing such an action.
I think the appeal should be dismissed with costs.
Wood Renton J.—
This case raises a question of considerable interest and import-ance. The material facts are these. On April 7, 1898, Moha-mado Hanifa obtained judgment for Rs. 2,000 against the first,Becond, and fourth respondents. He had waived his claim againstthe third. On May 20, 1898, writ of execution was issued againstthe property of the first, second, and fourth respondents, and a sumof Rs. 300 was realized. By deed dated May 7, 1900, MohamadoHanifa assigned all his interest under the decree to the appellant,who on December 9 last applied, under section 339 of the CivilProcedure Code, in the District Court of Colombo, to be substitutedfor his assignor as plaintiff in the case. He explained his long delayin moving under his assignment on the ground that the respondentswere not in the interval “ possessed of any property,” adding that he
i (1908) 9 N. L. R. 188.
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1908.was informed and believed that they had property now. Although,
June 29. a8 my Lord the Chief Justice pointed out at the argument, theWood prayer of the appellant’s petition was not strictly in conformityBbuton J.the terms of section 339, inasmuch as it did not specifically
ask for execution of the decree, there could have been no intentionon the part of the appellant to avoid asking for execution; and Ithink that his petition should be treated as if he had formally doneso, The first, second, and fourth defendants in the action weremade respondents in the petition. But counsel stated to us that thetwo former are now dead; and, in any event, the fourth respondentalone was represented at the hearing of the appeal. He hadanswered the appellant’s petition in an affidavit, which the learnedDistrict Judge had before him when he made the order appealedagainst, and which in substance alleged that the balance of theamount appearing due upon the judgment had by agreement betweenthe parties been satisfied by the conveyance of certain property toMohamado Hanifa.
The learned District .Judge, in view (a) of the appellant’s lachesin making the application and failure to give any particulars ofthe property which he alleged had subsequently come into therespondent’s possession, (b) of his right to bring an independentaction on his assignment, and (c) of the statements in the fourthrespondent’s affidavit which could be more conveniently decided insuch an action, dismissed the petition with costs. Against thatorder this appeal is taken. Mr. Morgan de Saram and Mr. HectorJayewardene, on behalf of the appellant, strenuously contested thelearned Judge’s proposition that his client had right to bring anindependent action on his assignment; and contended that the onlyremedy open to him was that prescribed by section 339 of the CivilProcedure Code. Mr. Van Langenberg, for the respondent, arguedthat there is nothing to prevent the assignee of a decree from suingon it, and that on the materials before him, viz., the appellant’s delayin making his application, and the uncontradicted statements inthe respondent’s affidavit, the District Judge was justified in givingeffect to the objection of want of due diligence, an objection equallygood against the assignee of a decree and the original decree-holder, and in refusing to accede to what was practically an appli-cation for re-issue of the. writ. I may add to this argument that ifthis be the light in which the appellant’s petition should be regarded,it was the third application of that character, for it appears from therecord that the writ was re-issued on September 16, 1898, and againon February 6, 1899. I agree with the decision of the learnedDistrict Judge. It is quite clear that in the absence of any enact-ments to the contrary, an actio judicati lies for the recovery of ajudgment debt (see Memwanji Ntmroji v. Ashabai *). The Legislature
i (1888) I. L. R. 8, Bom.
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may, however, in providing a special remedy for the recovery ofsuch debts, exclude the actio judicdti either by express words or bynecessary implication. Whether it has done so in any particularoase is a question that has to be determined by an interpretationof the terms and the scope of the provisions creating the statutoryremedy. It has been held by this Court (Ramen Chetty v.Appuhamy following various decisions under the correspondingsection of the Indian Code of Civil Procedure (c/. Bam BaTthsh v.Parma Lai; 3 Abidunvissa Khatoon v. Amerunnissa Khatoon; 3 AUKhan Bahadoor v- Balmalhund 4), that section 337 of our own CivilProcedure Code is exhaustive of the remedies open to a decree-holder,and that he cannot bring a separate action on his decree. I thinkthat we ought not to extend this ruling to the case of the assigneeof a decree. The decree-holder is a party to the record. Theassignee is not, till he has secured his substitution for the decree-holder under section 339. The decree-holder has a right to theissue of the original writ of execution, if his application is in con-formity with the requirements of the Code (section 226). TheCourt has a discretion as regards the application of the assignee.Those circumstances seem to me to differentiate the case of theassignee from that of the decree-holder. Such local authority asthere is supports the view that the assignee can bring a separateaction on his assignment (see Weerawagoe v. Fernando,* distinguishedby Wendt J. in Ramen Chetty v. Appuhamy, ubi sup., on the groundthat it was an action by an assignee, and Sulyman v. Somanaden•).I think that the District Judge was right on the law; and I see noreason to interfere with the exercise of his discretion on the materialsbefore him.
I would dismiss this appeal with costs.
i (1906) 9 N. L. B. 139.
(1886) /. L. B. 7, AU. 457.
(1876) I. L. B. S, CaL 827.
(1876) 26 W. B. 82.
B (1893) 2 C. L. B. 207.
(1897) 8 N. L. B. 20.
MOHAMADO HANIFA v. LAVENA MARIKAR et al