145-NLR-NLR-V-45-PELIS-Appellant-and-SAMICHCHI-Respondent.pdf
WIJETEWABDBNB J.—Pelts and Sarmchchi.
527
1944Present: Howard C.J. and Wijeyewardene J.PELIS, Appellant, and SAMTCHCHI, Respondent.
3—D. G., Tangalla, 3,826.
Decree—Application for execution of mortgage decree—Time limit—Civil' Procedure Code, s. 337.
PlaintiS obtained a hypothecary decree in 1930 against the defend-ant's intestate and on an application for “ execution of the decreeby the plaintiff’s Proctor, in September, 1941, the Court issued to theFiscal an order to sell, authorising him to sell the property bound andexecutable underthe decree. The Fiscal sold the mortgaged property
'and as the proceeds of sale were insufficient to satisfy the amount of thedecree, an application for execution of decree to – recover the balance byseizure and sale of other property in the hands of the administrator wasmade in December, 1942.
Held, that the application was not barred by the provisions of section337 of the Civil Procedure Code.*
Aiyadurai t>. Chittambalam, 42 N. L. R. 25, followed.
^yPPRAL from an order of the District Judge of Tangalla.
L. A. Rajapakse, K.C. (with him R. N. Ilangakoon), for substituteddefendant, appellant.
E. B. Wikremanayake, for plaintiff, respondent.
Gut. adv. vult.
October 24, 1944. Wijiiyewaudeue J.—
The plaintiff-respondent sued one Miguel in this action and obtained ahypothecary decree against him in 1980. The decree ordered the sale ofthe mortgaged lands, if the defendant failed to pay the decreed amountwithin two weeks of the decree. It further directed that the defendantshould pay the deficiency to the plaintiff, if the proceeds of the sale ofthe mortgaged properties were insufficient for the full payment of the decreedamount. Miguel died sometime afterwards, and the appellant who wasadministrator of Miguel’s estate was substituted as defendant in 1935.The plaintiff’s Proctor filed “ an application for execution of decree ”in September, 1941. Notice of this application was served on theappellant and he failed to show cause against the application. TheCourt, thereupon, issued to the Fiscal an “Order, t.o sell’’ authorisinghim “ to sell the properties declared bound and executable in terms ofthe decree ” upon the Fiscal’s “ usual conditions of sale The Fiscalsold the mortgaged properties and made his return to Court in September,1942. As the proceeds of sale were less than the amount due under thedecree, the plaintiff’s Proctor filed another “ application for execution ofdecree ” in December, 1942, to recover the balance due by “ seizure andsale ’’ of the properties belonging to the appellant as administrator ofthe estate of Miguel. The appellant objected in the granting of thisapplication, but the District Judge held against him.
It was argued in appeal before us that the application of December,1942, was barred by the provisions of section 337 of the Civil Procedure
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WIJEYE WAJUDENE J.—Pelis and Samichchi.
Code as it was made ten years after the decree. It was held in Peries v.Cooray1 that this section did not limit, the time within which the firstapplication for execution should be made under Chapter 22 of the CivilProcedure Code. The argument of the appellant could, therefore,succeed only if the application? of December, 1942, could be regarded at a" subsequent, application " within the meaning of section 337. It couldbe so regarded only if the application of September, 1941, was also anapplication under Chapter 22 of the Code. I do not think that theapplication of September, 1941, was such an application. The mortgagedecree was entered under section 12 (1) of the Mortgage Ordinance.Under that section the Court had the power, even after decree wasentered, to give directions as to the person who should conduct the pale.The Court exercised .that power when it issued the “ Order to sell ” to theFiscal in 1941. It is true that the plaintiff invited the Court to exercisethat power by filing an application which he called “ an applicationfor execution of decree ”. The fact that the plaintiff chose to call hisapplication “ an application for execution of decree ” does not and cannotalter the true nature of the proceedings. When an applicationexecution made under Chapter 22 of the Code is granted, .the Fiscal has toperform certain duties. He must go to the debtor’s place of residenceand require .the debtor, if present, to pay the amount of the debt and ifhe is unable to get payment he should seize the property of the debtorbefore he proceeds to sell it (see section 226). No such thing happenedin this case, because the decree fixed a date for the payment of the debtand directed the sale of certain specific properties in default of suchpayment. I do not think it necessary to discuss this matter at length,as the reasoning underlying the decisions, Perera v. Jones2 and Aiyaduraiv. Chittambalam3 applies to this case.
I would dismiss the appeal with costs.
Howard C.J.—I agree.
Appeal dismissed. *
1 {1909) 12 N. L. R. 362.
* {1940) 41 N. L. R. 193.{1940) 42 N. L. R. 25.