119-NLR-NLR-V-43-MURUGAPPA-CHETTIAR-v.-BANDARANAYAKE-et-al.pdf
Murugappa Chettiar v. Bandaranayake.
489
1942
Present: de Kretser and Wijeyewardene JJ.
MURUGAPPA CHETTIAR u. BANDARANAYAKE et al.
29—D. C. Kandy, 385.
Writ—Exercise of due diligence—Examination under s. 219 of the Civil
Procedure Code—Res judicata
Plaintiff obtained judgment against three defendants and proceeded toapply for writ against first and third defendants.- Thereafter he appliedfor writ against the second defendant and on the latter’s objection thathe had failed to exercise due diligence on his previous application, theapplication was refused.
Held (in a subsequent application for examination of the first defendantunder section- 219), that the plaintiff was not barred by the order inthe application for writ against the second defendant from making thepresent application.
It is open to a judgment-debtor to raise the question of due diligencewhen an application is made to have him examined under section 219 ofthe Civil Procedure Code.
The provisions of section 337 of the Civil Procedure Code are highly-penal and should not be construed strictly against a judgment-creditorso as to prevent him from recovering money found to be due to him bydecree of Court.
490 WIJEYEWARDENE J.—Murugappa Chettiar v. Bandaranayake.
^^PPEAL from an order of the District Judge of Kandy.
N.E. Weerasooria, K.C. (with him P. Malalgoda), for first defendant,appellant.
Cyril E. S. Perera (with him C. J. Ranatunga), for plaintiff, respondent.
Cur. adv. vult.
July 22„1942. Wijeyewardene J.—
The plaintiff-respondent obtained a decree on October 30, 1939, againstthree defendants, jointly and severally, for the recovery of a sum ofRs. 1,394.25 and costs.
On January 9, 1940, the plaintiff applied for and obtained a writagainst the first and third defendants. The writ was made returnableon June 30, 1940. In execution of that writ, the plaintiff caused certainmovable property alleged to belong to the first defendant to be seized inBadulla. The property was claimed by the first defendant’s wife. Theclaim was upheld in due course in the Badulla District Court, but theevidence does not show when the order in the claim inquiry was made.Moreover, when the writ was returned by the Fiscal to the Kandy DistrictCourt, it had the following endorsement, dated June 29, 1940 : —
“ Sale fixed for January 22, 1940, was stayed on order of Court, dated19 January, 1940, the articles seized having been claimed. ”
This endorsement suggests that the order in the claim inquiry couldnot have been made before June 29, 1940.
On March 20, 1941, the plaintiff applied for writ against the seconddefendant. After inquiry, the District Judge upheld the objection ofthe second defendant that the plaintiff had failed to exercise due diligenceon the previous application for writ against the first and the thirddefendants and refused to issue writ against the second defendant.There was no appeal against that order.
The plaintiff then applied'to the District Judge for an order undersection 219 of the Civil Procedure Code for the examination of thefirst and the third defendants. The third defendant raised successfully,at that stage, the plea that he was-a public servant within the meaning ofthe Public Servants (Liabilities) Ordinance and the Court, thereuponrefused to allow any further action to be taken against him.
The first defendant sought to avoid his examination under section 219on the ground that the plaintiff did not exercise due diligence on theapplication for writ made on January 9, 1940. After inquiry, the DistrictJudge held against the first defendant and the first defendant preferredthe present appeal against that order.
In my view, it is open to a judgment-debtor to raise the question of duediligence when an application is made to have him examined undersection 219. The judgment-creditor could ask for such an examination. only if he is entitled to enforce the decree. This connotes a right in thejudgment-debtor sought to be examined, to show that the judgment-creditor is not entitled-to enforce the decree by virtue of the provisions ofsection 337 of the Code.
The King v. Lewis Singho.491
The Counsel for the appellant raised two points in support of the appeal:
(i) that the judgment-creditor was barred by the order made by theDistrict Judge on his application of March 20, 1941, from statingthat he exercised due diligence on his application of January 9,1940.
(ii) that due diligence was not, in fact, used on the application ofJanuary.9, 1940.
With regard to the first point, the question should be considered inaccordance with the general principles of law analogous to those of resjudicata. But these principles would not operate where the parties to thesubsequent application were neither parties to the previous applicationnor the privies of such parties. (Harendra Lai Roy Chowdry v. Shem Lai *.)The first defendant was neither a party to the application of March 20,1941, nor a privy of the second defendant against whom alone thatapplication was made. The first point must, therefore, fail.
As regards the second point, it is sufficient to state that the plaintiffappears to have done all that he could have attempted reasonably withinthe period of the writ from January 9 to June 30, 1940. He seizedmovable property belonging to the first defendant and he was thenconfronted with an inquiry in a distant court as a result of a claim madeby the first defendant’s wife. In order to succeed on a subsequent applica-tion for writ, it is not incumbent on a judgment-creditor to satisfy acourt that on a previous application he took all the possible steps whicha creditor exercising the greatest possible diligence would have taken..The provisions of section 337 of the code are highly penal and shouldnot be construed very strictly against a judgment-creditor, so as toprevent him from recovering money found to be due to him by a decreeof court.
I dismiss the appeal with costs.de Kretser J.—I agree.
Appeal dismissed.