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1921.Present; De Sampayo J. and Schneider A.J.
PERERA v, IBRAHIM.
70—D. C. Gaik, 6,209.
A pplicationfor writ after nineteen yews—Application disallowed—Subsequent application to vacate order —Power of Court—Ex parteorder—Prescription—Civil Procedure Code, ss. 189, 337.
An ex parte application for writ of execution made for the. firsttime (nineteen years after judgment) was disallowed on the groundthat the decree was prescribed. Plaintiff made a subsequentapplication that the previous order be vacated and writ be allowed*which the Court allowed.
Held, that the Court had no power to vacate its first order andto issue writ.
rpHE facts appear from the judgment.
Ettioti, K.C. (with him Abdul Coder), for defendant, appellant.—The District Judge had no right to vacate his previous order of .February 26, 1921, except for reasons stated in section 189 of the"Civil Procedure Code. The only remedy the respondent had was toappeal to the Supreme Court (Courts Ordinance, section 75). If hisapplication of March 9, 1921, be treated as a subsequent applica-tion, then it is nineteen years after the decree, and should not be „allowed (Civil Procedure Code, seotion 337).
M. W. H.de Silva, for plaintiff, respondent.—The first order wasan ex parte order; the proper procedure was to apply to the DistrictJudge to vacate the same. Further, the first application was onlyfor a notice on the judgment-debtor to show cause why writ shouldnot issue. It was not one for execution. Therefore, plaintiffcould not have appealed.
September 28,1921. De Sampayo J.—
In this action judgment was entered in favour of the plaintiff sofar back as January 23,1902. The next step taken on behalf of theplaintiff was on February 26,1921, nineteen years after the decree,when proctor for the plaintiff tendered an application for writ ofexecution against the property of the defendant. The District Judgeat once refused the application, as he thought the decree was pre-scribed. On March 9,1921, the plaintiff’s proctor again moved thatthe previous order be vacated, and the application for writ be allowedIn support of this motion, he cited a decision of this Court to theeffefet that when the application feu: execution was the first applica-tion, there was no prescription of the decree. This motion wasallowed by the District Judge. The defendant has appealed |
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Unless there is something very distinct in the law, I think that 1921*justice requires interference by this Court with the present order, ^ simero
Mr. Elliott, for the defendant, contends that the District Judge had j.no right to vacate his previous order and to make a fresh orderallowing writ, I think the contention is sound. Rightly or wronglyIbrahim.
the District Judge made a distinct otder refusing the application forwrit, and there his authority ended. Mr. Silva, for the respondent,says that as regards this point the proper course for the defendantwas to have moved to vacate the first order, which was ex parte. J "do not think there is any good purpose to be served by requiring thedefendant to go back again. I think we have sufficient power todeal with the order as it stands and to interfere with it, if we findthe ends of justice require it. I have no doubt that justice doesrequire that the plaintiff should not be allowed after this long inter-val of time to harass the defendant by '.suing writ. In view of thefact that the District Judge disavowed the application for writwhen first applied for, the second order I $hink was not right.
I would set it aside, with costs.
Sohneedeb A.J.—I agree.
PERERA v. IBRAHIM