MUTTIAH CHETTY v. MARICAR et al

015-NLR-NLR-V-11-MUTTIAH-CHETTY-v.-MARICAR-et-al.pdf


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1907.Mar oh 4.
[In Beview.]
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Middleton, and Mr. Justice Wood Benton.
MUTTIAH CHETTY v. MABICAE et al.
Ex parte Hydroos Lebbe Maricar, Substituted Plaintiff.
D. C., Puttalam, 1,513.
Decree against several persons—Assignment of decree by creditor in favourof onejudgment-debtor—Execution—Satisfactionofdecree—Civil
Procedure Code, s. 339.
Oneof several joint and several'judgment-debtors,whohas
taken an assignment of the decree from the judgment-creditor,cannot execute such decree against his co-debtors.
Hutchinson C.J.—Whem the judgment debt -was paid by oneof tho judgment-debtors, the decree was satisfied, the action wasat anend, and no further proceedingscould be takenunderthe
writ which had been previously issued, and no further writ ofexecution could be issued, because there was nothing to execute.
Wood Benton J.—Section 339 of the Civil Procedure Codeenactssubstantive law, and thereforeits provisionscannotbe
waived. The rule embodied in this section is not a mere rule ofarbitraryi enactment or of convenience, but one resting on solidgrounds of principle and equity.
H
EABING in review of the judgment of the Supreme Courtreported in (1907) 10 N. L. R. 206.
The original plaintiff obtained judgment in the action onMarch 25, 1902, on a money bond against two defendants, whowere liable jointly and severally on the bond, the first defendantbeing the principal deb.tor and the second defendant being his surety.A writ of execution was issued thereon on July 2, 1902.
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On November 13, 1903, the original plaintiff, by his attorney, bydeed of that date, acknowledged that he had received from thesecond ^defendant Bs. 8,000 in full satisfaction of the principal,interest, and costs due under the writ, and he thereby transferred tothe second defendant the whole amount due under the writ mid allhis rights under the writ.
On February 25, 1904, the second defendant applied to theDistrict Court for an order to substitute his name for that of theoriginal plaintiff, and that he might be allowed to sue out execution.The District Court issued an order nisi accordingly; this wasserved on the first defendant, but he did not appear on the day whenit was returnable, and it was made absolute on that day.
The substituted plaintiff then obtained a writ of execution againstthe first defendant, under which the Fiscal seized and sold propertyof the first defendant. The latter thereupon applied to the DistrictCourt to set aside the sale on the ground of irregularities in theconduct of the sale, and also on the ground that the writ ofexecution was wrongly issued on the application of one of the twojoint judgment-debtors against the other, and that the judgmentdebt had been satisfied at the time that the writ of execution wasissued. The District Judge (B. N. Thaine, Esq.) held as follows(March 4, 1907): —
" In this action one S. S. P. Muttiah Chetty obtained a mortgagedecree for Bs. 7,056.25 against S. I. Naina, M. L. Tamby Marikar,and Mohideen Wawa Marikar Hydroos Marikar, executor of thelast will of M. W. M. Mohamadu Lebbe Marikar. This decree isdated March 25, 1902. Of the two debtors, the latter, MeeraLebbe Marikar, was a surety, but in accordance with the terms ofthe bond the obligation was a joint and several one.
“On February 25, -1904, the second defendant in the action- filed a petition in this Court praying for an order to substitute hisname for that of the plaintiff with this petition, to which the firstdefendant and P. L. C. Karuppen Chetty, described as an attorneyin the petition of S. S. P. Muttiah (though the power of attorney wasnot produced), were made respondents, a deed of assignment wasproduced. By this deed P. L. C. Karuppen Chetty assigned for thesum of Bs. 8,000 his right and title in the decree. This order wasserved on the respondents, and eventually made absolute, andsecond defendant was substituted as plaintiff. In the course oftime writ was issued in execution of the decree, and on November 5,1906, the" property of the first defendant was sold for a sum ofBs. 9,380.
“ On November 30, 1906, the first defendant,- whose propertieswere sold, filed a petition, making the substituted plaintiff and thepurchasers of the lands respondents, calling upon them to show causewhy this sale should not be declared void and set aside.
1907.March 4.
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1007.“ The respondents appeared on service of notice, and having cause
March 4. to show, the matter came on for inquiry on February 21, 1907.
“ To simplify matters I propose to deal with the following issues,which seem to arise from the petition and the arguments duringthe course of the inquiry: —
“ (1) Can the sale be set aside on the grounds of irregularity?
“ (2) Is the sale void, and can this question be considered inthe present inquiry ?
“ (3) Is the petitioner by his conduct estopped from pleading atthis stage the illegality of the execution and consequentsale ?
“It is quite clear that to set aside a sale on the grounds ofirregularity the petitioner must prove irregularity in publishing andconducting it, and that substantial injury has resulted from thisirregularity. In this matter petitioner urges three grounds ofirregularity, viz., sales before the advertised time; no proper publi-cation at the place of sale by beating of tom-tom; neglect on the partof the purchasers to deposit one-fourth of the proceeds of the saleimmediately after the sale was concluded with the officer conductingthe sale.
“ Evidence was led on all these points. I must confess the evi-dence led by the first respondent seems to be more credible thanthat of the ^petitioner. In proof of the regularity of the sale, boththe officers who conducted, the sale and the Vidane who advertisedby beat of tom-tom have given evidence which appears to beunimpeachable. Against this evidence there is only the evidenceof a man whose statements of the valuation of the properties is sovague and obviously prejudiced as to make the rest of his evidenceincredible.
“ The Fiscal’s officer admits he did not take the 25 per cent,deposit immediately after the sale, but explains his omission bystating that the purchasers were willing and ready to pay, but thathe, for safety sake, asked them to bring the money the next day to theKachcheri. This omission is declared to be a material irregularity,but as no substantial injury can be attributed to this neglect, forthe money was paid up, I do not think that on this ground alone thesale can be set aside.
“ On this first issue I would hold that there are no grounds ofirregularity sufficient to set aside the sale, and that, even on theassumption that the irregularities occurred, there is no sufficientevidence to show that the petitioner has suff'- *.d substantialinjury by reason of the irregularities.
“ The second issue is whether the sale is voiu, and whether thisquestion can be considered in the present inquiry. Mr. Elliottargued that this question could not be considered by the Court, and insupport of his argument referred to the cases quoted by O’Kineallyin Indian Civil Procedure Code under section 311.
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“ I admit that if the present application was merely to set asidethe sale on the grounds of irregularity, the petitioner would have toconfine himself to proof of irregularities in the publishing and con-ducting it. But the application does not confine itself to one ofsetting aside a sale on the grounds of irregularities. It also praysthat tiie sale be declared void on the ground of the illegality of theexecution.
" In support of his contention that .the Court has power to.consider this question, Mr. Chitty referred to section 344, CivilProcedure Code. This section requires that all questions arisingbetween the parties relating to the execution of the. decree shall bedetermined by the order of Court and not by separate section.
“ Now the ground urged by the petitioner for declaring the salevoid is an irregularity in granting execution, and I know of noreason for excluding this question from consideration in the presentapplication. It is admitted that the substituted plaintiff was underthe original decree a judgment-debtor. He paid up the amount ofthe decree, obtained an assignment from the judgment-creditor,and then applied to the Court to issue writ of execution against thefirst defendant, a co-debtor.
“It is clearly laid down in section 339 of the Civil ProcedureCode that where a decree against several persons has been trans-ferred to one of them it shall not be executed against the others.This appears to be the law of Ceylon, and accordingly the issue ofthe writ being illegal, the subsequent proceedings would appear tobe null and void. In further support of this contention Mr. Chittyreferred me to 8 N. L. R. 325, where a sale was set aside on theground that the writ was illegally issued.
“ The question that a debtor who has purchased a decree cannottake out writ against his co-debtor is discussed at considerablelength in Sutherland’s Weekly Reporter (1868) Vol. IX., page 230. Inthe course of his judgment Phear J. said execution is merely a processof seeming obedience to this order. As soon as a payment is madeby the person ordered to pay there is in one sense an end of thedecree, and no further execution can be taken out under it. Theremedy of the judgment-debtor who has purchased the decree afterpaying it is to bring a suit for contribution. Further, it is clearfrom the proviso of section 283, Civil Procedure Code, that no salecan be confirmed if the debt was satisfied at the time the writ ofexecution issued.
“ Taking this judgment in Weekly Reporter with that quoted in8 N. L. R. 325, I am of opinion that the issue of .writ being illegalthe sale is void, and must be set aside. The Fiscal appears to havehad no legal authority to sell the lands, and the case in 8 N. L. R. 325seems to be a clear authority that where the execution was illegallygranted a sale must be set aside.
8-
1907.March 4.
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1807.March 4.
1908.
February 25.
“ Lastly, it is contended that petitioner by his conduct isestopped, inasmuch as he' took no objection to the seizure of thelands, and in fact has acquiesced in the seizure and sale, having onprevious occasion actually stayed sale, by payment of the Fiscal’sfees. I do not think the law of estoppel applies in this case. Theredo not appear to exist the elements of an estoppel. I hold there-fore that the writ having issued illegally the sale is null and void,and must be set aside. The first respondent will pay the petitioner’scosts. The costs of the other respondents I order to be' dividedbetween first respondent and petitioner.
“ I make this order as I think the first respondent is not entirelyto blame for this litigation, as it was the duty of the petitioner tobring to the notice of the Court the illegality of the writ of executionbefore the first respondent took steps to seize and advertise thelands for sale. The purchase amounts will of course be returned tothe purchasers.”
The substituted plaintiff appealed, and the Supreme Court onJune 12, 1907, dismissed the appeal. See (1907) 10 N. L. If. 206.
In Review.
Sampayo, K.G., for the appellant.
Chitty, for the respondent.
Cur. adv. vvlt.
February 25, 1908. Hutchinson C.J.—
This is a hearing in review before appeal to His Majesty in Councilfrom a judgment of the Supreme Court (Middleton J. and Grenier
J.) dated June 12, 1907.
The original plaintiff obtained judgment in the action on March25, 1902, on a money bond against two defendants, who were liablejointly and severally on the bond, the first defendant being theprincipal debtor and the second defendant being his surety. A writof execution was issued thefraon on July 2, 1902.
On November 13, 1903, the original plaintiff, by his attorney,by deed of that date acknowledged that he had received from thesecond defendant Rs. 8,000 in full satisfaction of the principal,interest, and costs due under the writ, and he thereby transferred tothe second defendant the whole amount due under the writ and allhis rights under the writ.
On February 25, 1904, the second defendant applied to the DistrictCourt for an order to substitute his name for that of the originalplaintiff, and that he might be allowed to sue out execution. TheDistrict Court issued an order nisi accordingly; this was servedon the first defendant, but he did not appear on the day when itwas returnable, and it was made absolute on that day.
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The substituted plaintiff then obtained a writ of execution against 1908.the first defendant, under which the Fiscal seized and sold property February 26.of the first defendant. The latter thereupon applied to the District HutchinsonCourt to set aside the sale on the ground of irregularities in the C.J.conduct of the sale, and alBO on the ground that the writ of executionwas wrongly issued on the application of one of two joint judgment-debtors against the other, and that the judgment debt had beensatisfied at the time that the writ of execution was issued. TheCourt set aside the sale, holding, firstly, that the enactment ofsection 339 of the Civil Procedure Code, that wheVe a decree againstseveral persons has been transferred to any of them it shall not beexecuted against the others, rendered the issue of the writ illegaland the proceedings under it null and void; and secondly, thatby reason of the proviso to section 283 the sale could not be•confirmed, because the debt was satisfied at the time the writ ofexecution issued; and thirdly, that the first defendant was notestopped by his conduct from taking these objections.
The Supreme Court affirmed this decision in the judgment whichis now under review.
When the judgment debt was paid by one of the judgment-debtors, the decree was satisfied, the action was at an end, and nofurther proceedings could be taken under the writ which had beenpreviously issued, and no. further writ of execution could be issued,because there .was nothing to execute. The original plaintiff hadnothing to assign, and the so-called transfer of the judgment debtand of his rights under the writ transferred nothing. It makes nodifference that the new writ was issued after notice to the firstdefendant; He did not consent to it, and he was not bound toappear and inform the Court that the order which it was asked tomake was one which it had no power to make.
I would affirm the order of the Supreme Court with costs.
Middleton J.—
I find no reason to alter the decision I have already pronouncedin this case under revision, nor do I find it'necessary to add anythingfurther thereto, and would dismiss the appeal in review with costs.
Wood Benton J.—
In my opinion section 339 of the Civil Procedure Code enactssubstantive law,' and therefore its provisions cannot be waived. Thereasoning of the Full Bench in the case of Degumburee Dabee v.
Eshan Chunder Sein 1 shows clearly that the rule embodied in it isnot a mere rule of arbitrary enactment or—like the provisions in theIndian Code of Civil Procedure (section 246 i.) and in our own(section 345) as to the execution of cross-decrees (of., on this point,
i (1868) 9 Suth. W. R. 230.

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1908. Reuia Mahion v. Ram Kisfun Singh *)—of convenience, but oneFebruary 28. resting on solid grounds of principle and equity. Further, noWood order confirming the sale could issue under section 288 of the CivilRbntonJ. Procedure Code, because the state of facts contemplated by theprohibitory proviso to that section had arisen—viz., “ the judgmentdebt was satisfied ”—at the time that the writ' of execution issued.Mr. de Sampayo argued that the payment made by the assignee inthe present case was one made in satisfaction not of the decree, butof the consideration for the assignment, and that, therefore, section283 did not stand in the way of a confirmation of the sale. Insupport of this contention he referred us to the case of AbulMansoor v. Abdool Hamid.2 In that case M had obtained adecree against A and two others. M sold the decree to S, whoexecuted it against A. B purchased. A sued for a declaration,and the Court found that S was only a purchaser benami for A’stwo joint debtors, and A sued B for the recovery of the property.It was held that the purchase qf the decree by A’s joint debtors,although it satisfied the judgment debt, did not affect the decree,that the sale under the decree was binding on A, and that his suitwas therefore a “ suit to set aside a decree ” within the meaning ofthe Limitation Act, 1871 (Act IX. of 1871), schedule II., clause 14,and as such, not having been brought within one year, was barred.I do not think that this decision can help the appellant in any way,out rather the reverse. The. proviso to section 283 of the CivilProcedure Code speaks of the satisfaction, not of the “ decree,”but of ‘‘ the judgment debt,” which was clearly satisfied, in thepresent case, at the critical point of time, by payment. I wouldaffirm the judgment under review with costs.
Judgment in appeal upheld.
> (1886) I. L. R. 14 Cal. U.
2 (1876) I. L. R. 2 Cal. 98..