035-NLR-NLR-V-10-MUTAPPA-CHETTY-v.-FERNANDO.pdf
f 180 )
1907,March 28.
[In Review.]
Present : Sir Joseph T. Hutchinson, Chief Justice, Mr. JusticeWendt, and Mr. Justice Middleton.
MUTAPPA CHETTY v. FERNANDO.
D. 6, Negombo, 4,750.
Writ, re-issueof—Stamp duty—Stampaffixed' tocopy, decree—Orderfor
re-issue endorsed on copy decree—Stamp Ordinance, No. 3 of 1890.
A Courthas power to re-iesueawrit ofexecution,returnedby
.the Fiscalon the ground that the-Balewasstayed atthe' instance-
of the judgment-creditor', provided the stamp duty is paid afresh.
The judgment of Wendt J. in Palaniappa v. Samsadeen (1>approved.
Where it appeared that the stamps were affixed to the copydecree accompanying the writ, andthattheorder forre-issuewaa
also endorsed on the said copy decree,—
Held, that the re-issue was valid.
*t ■
T
HIS was a hearing in review of the judgment of the SupremeCourt reported in 9 N. L. R. 150 preparatory to an appeal to
His Majesty in Council.
Walter Pereira, K.C., S.-G. (with him Schneider), for the defendant,appellant.
H. Jayewardene, for the purchaser, respondent.
Wadsworth; for the plaintiff, respondent.
E. Jayewardene and G. E. Chitty, for the Fiscal, respondent.
Cur. adv. vult.
*28th March, 1907. Hutchinson C.J.—
This is a hearing in review on an appeal by the defendant againsta decree of the Supreme Court made on the 20th June, 1906, whichaffirmed an order made by the District Court on the 26th March,1906, dismissing an application by the defendant to set aside a saleunder a writ of execution.
The plaintiff obtained' judgment against the defendant ^for a sum'of money, and thereupon issued a writ of execution*on the 3rdApril, 1903.. The writ was returned by the Fiscal unexecuted, andwas re-issued; this was done on several occasions; and finally on1st August, 1905, it was re-issued to the Fiscal, with no endorse-ment on it, but with a note on the copy of the decree* which
(1) 8 N. L. J*. 325.
( 181 )
accompanied it: '* Extended and re-issued for execution; return- iqqi,able 6th February, 1906.**March28.
The stamp was placed, not on the writ, but on the copy of the “decree. The date 14 5th February, 1906,” was written on an erasure Htno^tra03of “ 1st December, 1905,” the alteration having been made ap-parently by the Secretary.
The Fiscal, purporting to act under this writ, sold certainproperty. The defendant seekB to have the sale set aside on theground that the writ was bad on the face of it; that it was bad(1) because there is no power to re-issue a writ under the circum-stances in which this one was re-issued, and (2) because it was notstamped afresh, and (3) because the return day was altered fromthe 1st December, 1905, to the 5th February, 1906, withoutauthority.
I agree with the judgment of the Supreme Court in this case-,.that the Court has power to re-issue a writ which* has been, as inthis case, returned by the Fiscal because the sale was stayed at the*request of the execution-creditor, and that the enactment in the-schedule of the Stamp Ordinance, No. 8 of 1890 (p. 37 of Vol*. HE. ofthe Ordinances), only means that it shall not be re-issued withoutpaying stamp duty. On that point I agree with the opinion ofWendt J. in Palaniappa Chetty v. Samsadeeri (1). In my opinionalso the re-issued writ was not void because the endorsement as to*
• the re-issue was made on the copy of the decree accompanying the-writ, instead of on the writ itself.
The second objection m^jde by the appellant is that the stampwas placed on the copy of the decree accompanying the writ, andthat it ought to have been on the writ, and therefore the writ wasnull and void. The placing of the stamp on the copy of the decreemay have been an irregularity. If so, the officer of the Court who*issued the writ might be liable for a breach of hie duty under section10 of the Stamp Ordinance, but that would not make the writ nullor void.
Lastly, the alteration of the date for the return of the writ seems*to have been made before the writ was issued. The return day isfixed, not by the Judge, but by the Secretary; and no other wasnecessary to enable the Secretary to fix the date on this writ beforehe sent the writ out.
I think, therefore, that the appeal sh.ould be- dismissed with
costs.
Wendt J.*—. •
•»
I do not think it necessary to add anything to- my judgment onthe original appeal. Appellants ha^e not shown – that any of thegrounds of our decision were wrong. I would'., therefore, confirmthe judgment under review with costs. .
(1) (1905) 8 N. L. R. 895;
1907.
Jdarch 28.
( 182 )
Middleton J.—
The judgment Tinder review in this case very fully sets out thefacts and the reasons for the decision given, and 1 franklyacknowledge that I agree with every word of it. I do not think it,therefore, necessary to recapitulate fully either the facts or thereasons for the conclusion in which I entirely concur. The pointtaken is a highly technical one, and the appellant now seeks toset aside a sale at which he was present without demur, and to mymind without any merits in his case.
The learned Solicitor-General's case is that although the oldwrit was actually re-issued by the Fiscal and the new stamp dutypaid, yet, inasmuch as the stamps and the endorsement as to thedate of its return were put on the copy of the decree attached to thewrit and not on the writ itself, that no writ in point of law existedauthorizing the Fiscal to sell this land.
The practice appears to be that a copy of the decree is alwaysattached to the writ and practically becomes part of it, and in thiscase, as my brother Wendt put it, this was done, although now forsome unknown reason these two documents have been separatedand placed apart in the record, and I cannot see that the writ isvitiated by putting the stamps or writing the endorsement of thedate of its return on the copy of the decree, which in practicebecomes part of the writ itself.
Reliance is placed on the terms of the provisions of the StampOrdinance, No. 3 of 1890, as to the re-issue of writs, and it is con-tended that the present is in fact a re-issue which would not bepermitted by that Ordinance. In my opinion, however, thatprovision means there shall be no re-issue without payment of stampduty, except in the . cases mentioned. Here stamp duty has beenpaid, and the date of the return was properly endorsed by theSecretary, although he inadvertently omitted to enter the datefinally fixed in the journal.
In my opinion the appeal in review should be dismissed with costs.
i
Judgment in appeal confirmed.
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