026-NLR-NLR-V-19-P.L.K.N.M.K.-CHETTY-v.-PERERA.pdf
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1916.
Present : Ennis J. and Shaw J.
P.L. K. N. M.^K. CHETTY v. PERERA.
27—D. G. Colombo, 36,571.
Civil Procedure Code, s. 337—Re-issue of writ—Due diligence.
Per Shaw J.—The Court should not construe section 337 of theCivil Procedure Code unnecessarily strictly against the judgment-creditor, or search about for possible steps that he might possiblynave taken had he exercised great diligence in enforcing his firstdecree.
rp HE facts appear from the judgment.
E. W. Jayewardene, for appellant.
A. St. V. Jayewardene, for respondent.
Cur. adv. vult.
May 29, 1916. Ennis J.—
This is an appeal from an order under section 337 of the CivilProcedure Code allowing executing of a decree. In Ramen Gheftyv. Jayawardene 3 it was held that whether or not a judgment-creditor had exercised due diligence on the previous applicationis aquestionoffact depending on. thecircumstances in each
case.It wasforthe appellant to showclearly that the order
appealed from is wrong. There are circumstances which havebeen urged with some force in favour of the appellant’s view, butthere are also matters upon which the finding of the learned Judgecouldproperlybe based. The writ in theprevious application had
beenreturnedwithan endorsement of “noproperty, ” Some ten
i Wendt 232.2 8 S. C. C. 153.3 (1915) 19 N. L. R. 392.
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months later the plaintiff applied for the arrest of the defendantin execution of his decree. On that application coming on forhearing, the plaintiff’s manager filed an affidavit stating that everyeffort had been made to find out property belonging to the defendant,and that the plaintiff had delayed his application for arrest forsix months, as the debtor had promised to pay the amount withinthat time. The creditor then filed an affidavit disclosing hisproperty, and the plaintiff elected to make a fresh application forexecution against the property. It is the order in the last applies:tion which is now under appeal. The plaintiff-creditor intimatedto the Court a desire to cross-examine the debtor with regard to thestatements in his affidavit, but the debtor did not ask to cross-examine the plaintiff’s manager as to. the statement in the manager’saffidavit to ascertain what endeavours had been made to findproperty. The learned Judge, who had the debtor in the witnessbox before him, has disbelieved the debtor, and has held that theplaintiff exercised due diligence on the earlier application, andthat the debtor had requested the plantiff’s attorney to stayexecution thereafter. In these circumstances, I am unable to saythat the order appealed from is wrong, and would dismiss theappeal, with costs.
Shaw J.—
The provision contained in section 337 of the Civil Procedure Code,that where an application to execute a decree has been grantedno subsequentapplication toexecutethesame decreeshall be
granted, unlessthe Court issatisfiedthaton the lastpreceding
application due diligence was used to procure complete satisfactionof the decree, is a highly penal one against the judgment-creditor,and one which prevents him altogether from thereafter recoveringa sum of money that the Court has decided to be his due, shouldhe be found not to have exercised due diligence on his formerapplication. I think the Court should, therefore, not construeit unnecessarilystrictly against the judgment-creditor,or search
about for possible steps that he might possibly have taken had heexercised greatdiligence inenforcinghisfirst decree.I agree
entirely with the decision in Ramen Chetty v. Jayaivcirdene 1 that itis not in all cases necessary that the creditor should have takenproceedings for" the examination of the debtor under the provisionsof section 219, and that it is a question of fact in each particularcase whether, under the circumstances, due diligence was exercised.
With regard to the particular ease now before the Court, I findit impossible to say that I am satisfied that the judge has exercisedhis discretion to re-issue the writ wrongly.
I therefore agree that the appeal should be dismissed, with costs.
Appeal dismissed.
1916.
Ennis J.
P. L. K. N.M. K. Chettyv. Perera
i (1915) 18 N. L. B. 399.