Present : The Hon. Mr. A. G. Lascelles, Acting Chief Justice, and
Mr. Justice Wendt.
MUTAPEA CHETTY v. FERNANDO.
D. C., Negombo, 4,750.
Writ, reissueof—Stampduty—Validity—Failureto mention payment
on account of decree—Returnable date—Irregularity—Nullity.
A sale, which is altogether void by reason of some irregularity,may be .set aside without any proof of any injury to the partycomplaining.
The reissueof writis not ipsofacto illegal, providedthe stamp
duty has been paid afresh, as required by The . Stamp Ordinance,1890.
Where thestampswere affixedto . the copy decreeannexed to
the writ and not the writ itself.
Held, that the writwas properlystamped, the copy decree
forming part of the writ.
Where a writ onthe. faceof itwasreturnableonaparticular
date but thejournalentry showeda different date as the returnable
Held, thatthe dateon the writmust be taken to bethe correct
date, the journal entrybeing merelya diary ofthe stepsin the
A reissue of a writ is not vitiated by the fact that thejudgment-creditor has . failed to mention – to the Court a. paymentmade by the judgment-debtorbeforesuchreissue;andaninnocent
purchaser under such writ is not affected by such failure.
Wendt, J.—If awritis irregularly issued it isthedutyof the
judgment-debtor tohaveitrecalled.Ifhe doesnotdoso, but
stands by and lets the sale proceed without protest or objection,his conductestops himfrom takingany objection thereafter to
the issue the writ to the prejudice of the purchaser.
Wendt, J.—It wouldbe well ifpractitionersmake ita rule
never to reissue an old .writ.
HIS was an application by the judgment-debtor to set asidea Fiscal’s sale ofproperty sold under amortgagedecree.
The application, to which the judgment-debtor, the purchaser,andthe Fiscal were made parties,was madeon the following
grounds:(1) that the writ when reissued was not stamped;
(2) that a payment of Rs. 1,500 was not mentioned to Court beforethe writ was re-issued; and (3) that the writ was made returnableon the 1st December, 1905, and could not therefore justify a saleon 6th January, 1906.
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The District Judge (A. de A. Seneviratne, Esq.) disallowed theapplication on the ground that the applicant had failed to provethat he suffered any loss by reason of the irregularities complained of.
The defendant appealed.
Walter Pereira, K.C. (Domhoret, K.C., with him), for the appellant.—The writ is not stamped. The stamps are on the copy decree,and the endorsement reissuing the writ is also on the copy decree.This is not a sufficient compliance with the provisions of the StampOrdinance. The proceedings are absolutely null, and no damageneed be proved: Palaniappa v. Sameadeen (1). When the saletook place the returnable date given in the journal entry hadexpired and the Fiscal had no authority to sell. The Secretaryhad no authority to alter the date in the writ. The sale is alsovitiated by the fact that the judgment-creditor failed to mentionin the application for writ a payment of Es. 1,500 made by the-debtor. The Civil Procedure Code does not recognize the reissueof a writ at all. The Stamp Ordinance, however, allows a reissueunder certain circumstances; and no reissue could therefore beallowed except under those circumstances. To say that when snew stamp is supplied there is no objection to the same paper beingsent to the Fiscal is to say that when the stamp is supplied the writmay be reissued, which is in direct contravention of the Ordinance.
H. Jayewardene, for the purchaser, respondent.—The stampduty having been paid, the affixing of the stamps on the wrongdocument is an irregularity; and there must be evidence ofsubstantial loss. The failure on the part of the creditor to mentionthe payment cannot affect a bona fide purchaser, especially wherethe Fiscal is informed of such payment before the sale. The dateon the writ is the proper date that should guide the Fiscal. Evenassuming that these irregularities exist, they do not vitiate thesale: Khairaj Mai v. Daitn (2).
Wadsworth, for the judgment-creditor, respondent.
E. W. Jayewardene, for the Fiscal, respondent.
,Cut. adv. vvli.
20th June, 1906. Wendt J.—
This is an appeal by the judgment-debtor, defendant in the actionagainst the refusal of the District Judge to set aside a sale in exe-cution. The judgment-debtor’s petition was presented undersection 282 of the Civil Procedure Code, and the irregularities
0) (1905) 8 N. L. R. 325.(2) (1904) 7. Bombay Law Reporter 1.
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alleged were as follows:—(1) That the judgment-creditor's appli-cation for reissue of the writ, and the reissue thereon of thewrit, were bad because a payment of Rs. 1,500 which had beenmade by the defendant was not mentioned to the Court and thewrit therefore went out for a sum in excess of what was due; (2)that the writ, when reissued, was not stamped afresh; (3) that itwas made returnable on the 1st December, 1905, and could nottherefore justify a sale on 6th January, 1906. Petitioner alleged -that in consequence of these irregularities the land sold (whichwas worth Rs. 45,000) realized only Rs. 23,705, and he therebysustained material injury.
The following facts appear from the documents and the evidencetaken by the Court on the petition. The decree, dated 20th Novem-ber, 1902, directed the defendant to pay to plaintiS the sum ofRs. 20,000 with certain interest and costs on or before 20th Decem-ber, 1902, and that in default the property in question, mortgagedby defendant to plaintiff, be sold and the proceeds applied in. satis-faction of the decree, and that, if such proceeds proved insufficientthe defendant do pay to plaintiff the amount of the deficiency.On 3rd April, 1903, the plaintiff took out a writ of execution,substantially in the Form No. 43 attached to the Code, requiringthe Fiscal to levy the sum of Rs. 20,272.50 with further interestand have that money before the Court on 6th July, 1903. Inaccordance with the practice which obtained before the enactmentof the Code, and which has been generally followed since, this writwas accompanied by a certified copy of the decree. (The foun-dation of this practice appears' to be provision of the StampOrdinance, schedule A, Pt. II., that “ no party shall be allowedto take any proceedings on or by virtue of any decree or judgmentwithout first taking a. copy thereof”). Usually this copy decreeis attached to the writ and treated as a necessary part of it, andthere is no reason to doubt that that is what occurred in this case. Itappears to have been sent to the Court with the writ when that wasreturned by the Fiscal, and to have accompanied it when it wasreissued. In this manner the Fiscal returned the writ on 17th June,
It was reissued on the 29th September, returnable on 8thDecember, 1903. On 8th December the writ was returned to theCourt and reissued again on 15th December, returnable 16th March,
On 7th March it was returned, and on 15th June reissuedreturnable 15th December, 1904. On 13th September it wasreturned, and on 1st December, 1904, reissued returnable 8th March,
It was re tinned on 23rd February (execution having beenstayed by ,the Court for three months on defendant’s application),
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and reissued on 1st August, 1905, returnable according to the1906.
journal entry on 1st December, 1905, but according to the endorse-*^uwe
ment itself on 5th February, 1906. The back of the half-sheetof paper constituting the writ proper is filled up with the Fiscal’sreturns and with the endorsements of the reissues in September,
and December, 1903. The subsequent returns and endorse-ments are written on the blank fourth page of the sheet, threepages of which sure occupied with the copy decree, and which inthe record immediately follows the writ. The stamps proper to beaffixed to the writ were, prior to the last reissue, affixed to the fourthpage of the copy decree, alongside the endorsement of reissue,signed by the Secretary of the Court.
Tn February, 1905, presumably on the occasion of plaintiff’sconsenting to defendant’s application to the Court for a stay ofexecution, the defendant paid him Us. 1,500 on account of thejudgment debt. In applying in June, 1905, for reissue of the writplaintiff did not certify this payment to the Court, and the writagain went out in its original terms; but on the 20th December,
1905, he informed the Fiscal of the payment and required him torecover so much less from defendant, and the Fiscal demandedof defendant the judgment amount less that sum of Rs. 1,500. On21st December plaintiff certified the payment to the Court. Itwas also proved by the officer who conducted the sale that defendantwas present at the sale and raised no objection. The land wasvalued by the Fiscal at Rs. 15,000 and was put up at that sum, andafter brisk bidding was sold to the respondent for Rs. 23,705, whichwas duly paid.
Before dealing with the objection to the sale put forward in thepetition, I would notice a further objection which was urged forthe first time in appeal, viz., that the sale cannot be supportedbecause the writ was on the last occasion reissued without a formalpetition for the purpose, but merely upon an application in theForm No. 42 of the Code, which until the decision of the casepresently to be mentioned was regarded as! sufficient, and which isstill generally in use in that case, Chellappah Chetty v. Kandiah (1),the representatives of a deceased judgment-debtor appealed againstan order made inter partes, allowing the judgment-creditor’s applicationfor execution, and it was held that the application shouldnot have been allowed because it was irregular, being in the FormNo. 42, and not in the form .of a petition. That decision is noauthority for holding that if the judgment-debtor had permittedthe Fiscal to execute the writ, and had stood by and seen his 1
(1) 2 Balasingham 61.
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property sold thereunder without making any objection, the salewould have been invalid. The objection would then have come toolate, and I think it comes too late now.
Appellant’s counsel conceded that their client’s objections,stated in the petition, were not strictly based on irregularities" in the publishing or conducting of the sale,” but they argued thatthose objections nevertheless vitiated the sale, .while they wereunaffected by the learned District Judge’s finding that there had infact been no injury whatever to appellant, inasmuch as the pricerealized was no less than the property would have fetched iu theabsence of any irregularity of any kind. Of course, if appellant isable to establish that the sale is void, that would entitle him to. askthat the Court should refuse to confirm it, without his haT ing toshow substantial injury caused by the irregularity complained of,'.and this., if I understand them aright, is what appellant’*, counselwere prepared to establish.
To come now to the petition, I am of opinion that the first ob-jection is not sustainable. It was doubtless irregular to have ■■taken out the writ as though the full amount of the decree werestill leviable, but that is purely a matter between creditor and debtor,and the objection was removed by the defendant being required topay the true balance only, and the sale taking place to levy thatbalance only in default of defendant’s compliance with the demand.
I think the respondent’s argument well founded that this is not amatter which can affect the purchaser who buys without noticeof the alleged irregularity. Being satisfied of the jurisdiction ofthe Court and of the Fiscal’s holding a writ of execution issued byit, he is entitled to rely on acquiring a good title, to the debtor’sinterest in the property sold. If the writ was irregularly issuedit was the defendant’s duty, as it was his right, to have had it recalled.He did not do so; on the contrary, he stood by and let the saleproceed without protest or objection. His conduct estops himfrom taking the objection now to the prejudice of the purchaser.
As to the second objection, it is not denied that the necessarystamps were upon the copy decree, and the latter was in the Fiscal’s-hands with the writ. For the reasons already giypn I hold thatthe copy decree was for this purpose part of the writ, and that byaffixing the stamps to the copy decree the writ was duly stamped.Appellant’s counsel further argued that the writ should not be“ reissued ” under any circumstances, because the Code whilecontemplating a second or subsequent issue of a writ of execution,•contained no provision recognizing the validity of a reissue.
I cannot help thinking that in substance the objection involves a
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mere question of names. If, after writ was once issued, the judg-ment-creditor makes another application for execution, he is nodoubt entitled to issue an altogether new writ. If he takes the oldwrit and alters it as to the present balance of the debt, returnabledate, &c., and stamps it as a new writ, and issues it, that is calleda “ reissue,” although in substance, in all but the bare paper, it is anew writ, and not properly a “ reissue.” " The Stamp Ordinance,1890 ” (re-enacting a provision which has appeared in the StampOrdinances from No. 2 of 1848 downwards), provides that no writwhatsoever which has once been issued shall on any pretext whatever bereissued, except in certain cases which do not embrace the present one.
It seems clearly implied that in these excepted cases the writ maybe “ reissued ” without paying any further duty in stamps. Ifthere was not to be this exemption from further duty, I fail to seethe reason for permitting a reissue at all. In Palaniappa Chettyv. Samsadeen (1) the writ had been reissued without the duty beingpaid afresh, and in holding that it was therefore void, Layard C.J.construed the prohibition in the Stamp Ordinance as absolute,while I ventured1 to express the opinion that, it being a part of thelaw relating to stamps, the prohibition would not be infringed bythe re-employment of the old writ if the duty were paid over againas on a new writ. I remain of that opinion still. It is quite truethat many instances come before us in which the writ has been sooften reissued that the paper on which it was written has becomefrayed and dirty and the writing undecipherable. To avoid thatand other inconveniences it would 'be well if practitioners made ita rule never to reissue an old writ, and it would of course be in thepower of the Court, whenever the original writ had ceased to beconveniently legible, to insist upon a new one being substituted for itupon a reissue of execution, but I cannot hold that the reissue of a writof execution in any case not falling within the exceptions enumeratedin the Stamp Ordinance must be considered ipso facto illegal.
The third objection is based on the fact that the note in thejournal entry, initialled by the Secretary of the Court, is that 1stDecember, 1905, was the returnable date. That appears to havebeen the date originally inserted in the endorsement on the writitself, but it appears to have been altered to 5th February, 1906,and the alteration initialled by the Secretary before the writ actuallywent out. The primary document is the writ itself, it is that whichgoes to the Fiscal; the journal entry is merely a diary of the stepsin the action, and in this instance it is proved to be incorrect. Wemust be guided by the writ. The' objection therefore fails.
I think that the appeal should be dismissed with costs.
a) (1905) 8 N. L. R. 325.
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I concur. I only wish to add that in my opinion the observationof Layard C.J. with regard to the reissue of writs in PalaniappaChetty v. Samsadeen (1) should not be disassociated from the factsof the case. If the stamp duty had been paid in that case, I am byno means confident that the Chief Justice would have held the writto be a nullity. The provisions of the Stamp Ordinance with regardto the reissue of writs have in view a purely fiscal purpose, and Icannot read them as an enactment that a writ, if reissued afterhaving been returned into Court, is a nullity, whether stampedor not. For questions of procedure we have to look to the Coderather than the Stamp Ordinance.
MUTAPPA CHETTY v. FERNANDO