119-NLR-NLR-V-53-MURUGESU-Appellant-and-SADDANATHAR.pdf
990
GRATIAEN -J.—Murugesu v. Saddanathar
•1981Present : Gratiaen J. and Gunasekara I.MUBUGESU, Appellant, and SADDANATHAR, Respondent
S. C. 65—-D. 0. Point Pedro, 2,979
Execution proceedings—One decree seized in execution of another decree—Positionof seizing creditor—His right to claim costs of execution—Civil Procedure Code(Cap. 86), ss. 234 (1), 339.
Where a judgment-creditor in one action seizes a decree entered in favour ofhis judgment-debtor in another action and has himself substituted as plaintiffin the latter action in terms of Section 339 of the Civil Procedure Code, he isentitled to claim, as the decree holder, his costs of execution and, indeed, thetotal amount payable under the decree in the latter action.
J^^.PPEAL from a judgment of the District Court, Point Pedro.
V. Arulambalam, for the substituted plaintiff appellant.
No appearance for the plaintiff respondent.
Cur. adv. vult.
July 18, 1951. Gkatiaen J.—
The appellant had obtained a decree for Rs. 410.05, interest andcosts against the respondent in D. C. 52 Summary of the District Courtof Point Pedro. In the meantime the respondent obtained in his favoura decree for Rs. 500, interest and costs in the present action againstcertain judgment-debtors. The appellant thereupon seised the decreein the respondent’s favour in this action in execution of the decree inD. C. 52 Summary, and at a later date applied for, and obtained, anorder of Court substituting him as plaintiff in the place of the respondentin terms of Section 339 of the Civil Procedure Code. In the result, theappellant became the only party entitled to execute the decree in theseproceedings, and his judgment-debtor, the original plaintiff, had nofurther status in the action. Sivasampoe v. Chelvarayan.1
On February 17, 1950, the appellant, in his capacity as substitutedplaintiff, applied for execution of the decree in the present action. Theapplication was allowed by the learned District Judge on February 25,1950. On July 29 one of the judgment-debtors deposited to the creditof the action Rs. 832 which was presumably the full amount payableunder the decree. The appellant’s Proctor then applied to draw a sumof Rs. 795.93 representing Rs. 669.25 being the sum due to him underthe decree in D. C. 52 Summary, and Rs. 125.93 being the costs ofexecution incurred by him in the present action. The respondent
(1931) 34 N. L. B. 84.
G-RATIAEN J.—Murugesu tj. Saddanathar5SH
•now re-appeared on the scene and raised an objection that the appellantshould not be permitted to draw any sum in excess of the amount dueto him under the decree in D. C. 52 Summary. The learned DistrictJudge decided in the first instance to call for and obtain a report from theSecretary of the Court. The Secretary’s report is in the followingterms: —
•
“ The substituted plaintiff is the decree holder in 52 Summary.As such he is only entitled to recover from this casetheactualamount
due on account of 52 Summary.In trying to recoverthatamount
if he incurs any expenditure, that is his lookout.”
On October 12, 1950, the learned District Judge, having heard theparties, seems to have adopted the reasoning of the Secretary. In theresult he ordered that the appellant should be permitted to draw
R.<=. 669.25 only out of the sum deposited to the credit of the action.
We have not had the advantageof any argumentonbehalfof the
respondent in support of the orderappealed from.Itseemsto me,
however, that the appellant is clearly entitled to succeed if the questionbe examined, as I think it must, by reference to the provisions of Section339 of the Code. The appellant has, rightly or wrongly, been substitutedin these proceedings in place of the respondent, who was the originaljudgment-creditor. As such, he alone became entitled, as against thejudgment-debtor in the action, to execute the decree with which we arenow concerned. The position of the respondent may well have beendifferent if, upon the seizure of the decree, • an order of the Court hadbeen made merely directing the proceeds to be applied in satisfactionof the decree in D. C. 52 Summary—vide Section 234 (1) of the Code.The order made under Section 339 however places the appellant in aposition of far greater advantage, and the rights which He now enjoysunder the present decree cannot be restricted in the manner indicatedby the learnedDistrict Judge. He aloneisnow the judgment-
creditor in theseproceedings, and I fail to seeonwhat principleof law
he can be prevented from claiming, as the decree holder, his costs ofexecution and indeed (as far as the judgment-debtors are concerned)the total amount payable under the decree. Such claims as the res-pondent may subsequently seek to prefer against the appellant in respectof any alleged over-payment must be decided in other proceedings thenature of which it is not necessary for me to express an opinion in thepresent case.'
■ I would set aside the order appealed from and allow the appellant’sapplication for an order of payment in his favourfor Rs. 795.18.The
respondent mustpay to the appellant the costsofthis appeal andof the
inquiry in the Court below.
Gunasekara. J.—I agree.
Order set aside.