074-NLR-NLR-V-61-MUDALIGE-Appellant-and-WILLIAM-SILVA-and-others-Respondents.pdf
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BASWAYAKE, C.J.—Mudalige v. William Silva
Present: Basnayake, C.J., and Pulle, 3.MUDALIGE, Appellant, and WILLIAM SILVA and others, Respondents
S. G. 233—JD. G. [Inty.) Colombo, 26026
Execution of proprietary decree—Decree—JHust it contain names of parties ?—Severaljudgment debtors—Omission of names of some of them in decree—Resistance toexecution of decree—Petition to Court complaining of resistance—Duty to nameall the judgment debtors as respondents—Civil Procedure Code, ss. S, 188, 825.
There is no requirement in section 188 of the Civil Procedure Code that adecree of the District Court should contain the names of the parties to theaction. Therefore, even if the names of the judgment-debtors are as a matterof praotice set out in the decree entered by the Court, any inadvertent omissionof the names of some of the judgment-debtors can be supplied by the Judgenunc pro tunc the moment it is brought or comes to his notice.
The plaintiff-appellant obtained judgment against seven defendants, but inthe formal decree drawn up by the Court against all the defendants the namesof only the first four defendants were stated. In the petition filed undersection 325 of the Civil Procedure Code in consequence of resistance to theexecution of the decree, only the four defendants whose names appeared in thedecree were named as respondents.
Meld, that the omission to name all the seven judgment-debtors as respon-dents to the petition was a fatal irregularity.
-^VppEAL from an order of the District Court, Colombo.
H. V. P&rera, Q.G., with E. B. Wikramanayake, Q.G., and N. D. MSasnarakoon, for Plaintiff-Appellant.
M.G. Abeyeieardene, with E. Gooneratne, for 1st Defendant-Respondent.
U.P. Weerasinghe, with J. G. Jayaiileke, for 8th and 9th Defendants-Respondents.
Lyn Wirasekera, with N. U. Wirasehera, for 10th Defendant.
Cur. adv-. vuU.
June 17, 1957. Basnayaice, C.J.—
The question that arises for decision in this appeal is whether theappellant’s petition under section 325 of the Civil Procedure Code satisfiesthe requirements of that section.
It would appear that the appellant obtained judgment against sevenpersons who were named as defendants to the action ; but in the formaldecree drawn up by the Court only the names of the first four defendantswere stated. As the execution of the decree was resisted it becamenecessary to file a petition under section 325. In that petition onlythe four defendants whose names occur in the decree were named asrespondents.
Respondent
BASUAYAKE, C.J.—Mtidcdige v. William Silva
The learned District Judge held that the appellant’s failure to nameas respondents to his petition three out of the seven Judgment-debtors isfatal to his application.
Learned counsel for the appellant submitted that the petition was inorder. He relied on the definition of the expression Judgment-debtor(S.5 Civil Procedure Code) which when used in the Civil Procedure Code*where the context does not otherwise require, means any person againstwhom a decree or order capable of execution has been made. As thedecree did not contain the names of the last three defendants he contendedthat they were not persons against whom a deoree had been made and weretherefore not judgment-debtors within the meaning of section 325 andthere was no legal obligation on the appellant to name them as respon-dents to his petition. I find myself unable to uphold this contention.The appellant’s action was against the seven defendants against whomjudgment was given. There is no requirement in section 188 of the Codethat a decree of the District Court should as in the case of a decree of thisCourt (Sec. 778) contain the names of the parties to the action. Nor isthere anjdhing in Porm No. 41 which makes it imperative that the defen-dants should be named in the decree. The omission of the names ofthe defendants from the decree does not therefore affect its validity.
The duty to draw up the decree is on the Court and even if the namesof the defendants are as a matter of practice set out in the decree aninadvertent omission can be supplied by tbe District Judge nunc pro tuncthe moment it is brought or comes to his notice. I am unable to holdthat the three defendants ceased to be judgment-debtors merely becausethe decree did not contain their names. The decree that was drawn upby the Court was a decree against all the defendants in the case. Thematerial portion reads : “ This action coming on for final disposal beforeG. M. de Silva Esquire, Additional District Judge, Colombo, on the11th day of March 1953 in the presence of Proctors on the part of thePlaintiff and Proctors on the part of the Defendants. It is ordered anddecreed of consent that the Defendants and all those claiming throughor from them be ejected.”
It is clear that the defendants referred to are the defendants to theaction and not only those who are named in the decree. Later on thedecree provides—“ In default of any payment Writ to issue for themoney claimed and for ejectment against all the defendants.” In myopinion the petition does not satisfy the requirements of section 325 inthat all the judgment-debtors are not named as respondents. ThisCourt has in the cases of Kumarafhy Fernando v. Hetu Ftana1 and Perera17. Silva 2 held that the omission to name the judgment-debtor as respon-dent to a petition under section 325 is fatal. Counsel did not canvass tbecorrectness of those decisions or their application to the present case inthe event of our holding that the persons whose names were omittedfrom the decree were judgment-debtors.
The appeal is dismissed with costs.
Put/t.b, J.—-I agree.
Appeal dismissed.
1 {1908) 2 S. O. JD, 48,
{1928) 31 N. L. R. 94.