PERERA v. MUDALALI

087-NLR-NLR-V-27-PERERA-v.-MUDALALI.pdf


( 483 )
Presml / Branch C.J., Dalton J., and Jayewardene A.J.
PERBRA *. MDDALAU.
189—D. C. Kalutara, 11,529.Seizure—Abortive sale—Mortgage by judgment-debtor—Subsequent re-issueof unit and sale after ten years from date of decree—Validity ofmortgage—Effect of first seizure—Civil Procedure Code, ss. 238and 33?•
On a writ of execution issued in pursuance fcf a judgment enteredon February 16/1909, against the first defendant, the property inquestion was first seized on August 5, 1916, and the seizure wasregistered on August 18,1916. A sale was held under this seizure,and the Fiscal reported to Court on October 19, 1916, that thepurchaser had failed to pay the balance purchase money. Therewere several applications for execution subsequently. On Novem-ber 11, 1921, ten years after the date of the decree, a furtherapplication was made under section 337 pf the Civil ProcedureCode and was allowed. No steps were taken under the writ issuedon that occasion. Writ was again re-issued, whereupon theproperty was seized and the sale ultimately held on November 6,1922, at which the second defendant became the purchaser.
Meanwhile, by bond No. 360 dated December 11, 1916, andregistered on December 21, 1916, the first defendant mortgagedthe property with the plaintiff.
In an action brought by the plaintiff on the mortgage bond,—Held (by Branch C.J. andDalton J., Jayewardene A.J. dissenting)*that the seizure in pursuance of which the Fiscal’s sale was heldwas the seizure of August 5, 1916, and that the plaintiff’s mortgage,having been executed pending such seizure, was null and void*
Per Jayewardene A.J.—In the circumstances of this casethe first seizure has ceased to be operative by circumstances ofabandonment …. It is impossible tP regard the sale at
which the second defendant purchased the property as one based onthe original seizure.
T
HE plaintiff sued the first defendant for the recovery of a sumof Rs. 1,821 *43 due on a mortgage bond dated December 11,
1916, and registered on December 21,1916. The second defendantwas joined as a defendant in the action as he had purchased themortgage property subsequent to the date of the bond. The firstdefendant filed no answer, but the second defendant pleaded that thebond was invalid as it had been executed, pending a duly registeredseizure in D. C. Colombo, 27,264, which was'an action institutedagainst the first defendant and another claiming a sum of Rs. 1,000and interest on promissory notes. Decree was entered in that caseagainst the first defendant on February 16, 1909. In execution ofthe decree the Fiscal seized the property of the first defendant on
1926.
1926.
Perera v«
MudcUali
( 484 )
August 5,1916, and the seizure registered on August 18,1916. Theproperty was sold by the Fiscal, who reported that the purchaserhad defaulted. Several abortive sales followed on the re-issue ofwrit on subsequent occasions. By this time ten years had elapsedsince the date of the decree, and an application was made Tindersection 337 of the Civil Procedure Code for re-issue of writ, whichwas allowed on November 11, 1921. The property was seized bythe Fiscal on October 6,1922, and sold on November 6,1922, to thesecond defendant, who obtained Fiscal’s transfer dated February 28,1923. The learned District Judge held that the sale to the seconddefendant took place under the seizure of August 6, 1916, that themortgage to the plaintiff was. void, and dismissed the plaintiff’s action.
J. 8, Jayewardene (with Croos Da Brera), for appellant.
H, V. Perera, for ohe respondent.
Cur. adv. wit.
May 12,1926. Bbanch C.J.—
This appeal was heard by three Judges under section 41 of theCourts Ordinance, 1889. The facts of this case are as follows:Don Avuneris Silva Wettasinghe filed1 an action (D. C. Colombo,No. 27,264) against H. D. S. Perera and Don Simon Appu aliasSisneris Mudalali for the recovery of moneys due on a promissorynote. Decree was entered in that case against H. D. S. Perera onSeptember 22, 1908, and against Don Simon Appu on February 16,1909. On August 5, 1916, the property now in question was seizedagainst Don Simon Appu, and the seizure was registered on August18, 1916. The Fiscal held his sale somewhere in September, 1916,and on October 19, 1916, reported to the Court that the purchaserhad failed to pay the balance of the purchase money. By mortgagebond No. 3,160 of December 11, 1916 (PI), registered on December21, 1916, Don Simon Appu bound himself to pay to one EdwardSimon Perera Rs. 1,000 with interest and hypothecated to EdwardSimon Perera the property in question held under the prior regis-tered seizure of August, 1916.
After 1916 there were several applications by the judgment*creditor, Don Avuneris Silva Wettasinghe, for the re-issuc of his writfor the re-sale of the property. Purchasers at all the sales failed todeposit the balance of the purchase money. When ten years fromthe date of the decree had expired the judgment-creditor took actionunder section 337 of the Civil Procedure Code, and having establishedthat the fraud of the judgment-debtor, Don Simon Appu, badprevented the execution of the decree, an application for theexecution of the decree was granted by the Court. Ultimately: at asale held on November 6,1922, the property was purchased by JohnSinno, and thatf'sale was confirmed on February 20, 1923. JohnSinno obtained Fiscal’s transfers D/2/2 and D/3/2, which wereregistered on May 14,1923.
( 485 )
In 1023, in suit D. G. Kalutara, No. 11,529, Edward Simon Perera,the mortgagee above referred to, Bued Don Simon Appu, the-mortgagor above referred to, on the mortgage bond No. 3,160 (PI),and added John Sinno as a defendant, as he (John Sinno) hadpurchased the property at the Fiscal’s sale in 1922 above referred to.Edward Simon Perera sought a declaration that the property wasbound and executable under the mortgage. At the trial beforethe District Judge the plaintiff’s Proctor agreed that the onlyquestion to be decided was whether the Fiscal’s sale in 1922, at whichJohn Sinno purchased, was held under the seizure of August 5,1916,registered on August 18,1916. If it was so held, then it was admittedthat the alienation by mortgage (PI) of December, 1916, was voidas against a claim of Don Avuneris Wettasinghe, the judgment-creditor (section 238 of the Civil Procedure Code), and that, therefore,John Sinno would be entitled to succeed. The first defendant, DonSimon Appu, filed no answer, and the learned District Judge gave amoney decree against him and dismissed the plaintiff’s action, withcosts, against the second defendant, John Sinno. The appeal isagainst this decision. The second defendant’s case in the Courtbelow was, in part, that the plaintiff’s mortgage bond (PI) wasinvalid, inasmuch as it was executed during the pendency of theseizure of the lands mortgaged, and further, that it was executed infraud and without consideration and with the object of defeatingthe creditors of the defendant. No oral evidence was adduced, andthe learned District Judge was left to decide the matter pn the. documents before him. He was of the view that the Fiscal’s saleat which the second defendant purchased was held under the seizureof 1916, which, as I have said, had been duly registered. He saysin his judgment:—
“ I cannot find anywhere throughout the journal sheet minutesin D. C. Colombo, 27,264, that there was any secondseizure. The writ was certainly issued and re-issued, butalways under the original seizure. The re-issuing of a writdoes not necessitate a re-seizure as long as the originalseizure was not released by Court, and in this case it neverwas. The judgment in 17 N. L. R. 183 and 19 N. L. R.225, &c., support this principle.”
Although there is no journal entry to that effect, the DistrictJudge, it would appear, is mistaken in thinking that there was nosecond seizure. The Fiscal’s sale report of November 18, 1922,States as follows:—
“ By virtue of the writ of execution No. 27,264 from the DistrictCourt of Colombo I have caused to be seized on October 5,1922, and sold under due publication at the premises onNovember 6,1922, the property enumerated in the annexedlist.”
1926*
Bbaxoh OJ*
Perera «•MudalaH
( 486 )
1926. The first stand taken on the appeal for Edward Simon Perera, theBbawoiTC.J, plaintiff-appellant, is that when an application for execution of thev decree after the expiration of ten years is made and granted underMuddlaU section 337 of the Civil Procedure Code, any former seizure, such asthat of August, 1916, ceases to have any effect, and that the lapse oftime lets in such a mortgage as PI. This argument cannot, I think,be sustained. The seizure of 1916 had not been withdrawn (seesections 238 and 239 of the Civil Procedure Code), and the mortgagewas void as against all claims enforceable under that seizure. Thegrant of the application for execution of the decree would result inthe property being sold, if sale became necessary, under the existingseizure of August, 1916, with respect to which there had been noabandonment of any kind. The grant of the application merelyenabled the judgment-creditor to execute the decree in the usualway, namely, by '^.le of the judgment-debtor’s lands, and the usualprocess of seizure and registration having been gone through, allthat remained to be carried out was the sale.
The next argument turns on the seizures themselves. There wasa seizure on August 5, 1916, and there was a second seizure onOctober 5,1922. I think it very likely that there were other seizuresbetween these dates, but only these two seizures are recorded. Thesale, it is sa:d, was thus under the 1922 seizure, and this being so, thefirst seizure must be deemed to have been abandoned or in abeyance,and thus ceased to be operative, and the claim of the plaintiff wouldbe established against John Sinno, as the property would be boundand executable under the mortgage PI.
If the seizure of 1916 was not abandoned or in abeyance, and I canfind nothing to show that it was—then there was in 1922 a subsistingseizure, and that seizure, under the terms of section 238, renders,the plaintiff’s mortgage void as against all claims enforceable underthat seizure, and, in my opinion, the second seizure by the Fiscal, andthe fact that the Fiscal states in his report that " by virtue of theWrit of Execution No. 27,264 from the District Court of ColomboI have seized on October 5, 1922 and soldcannot
alter the position and affect John Sinno’s purchase. The judgment-creditor, so far from abandoning the 1916 seizure, had time after timeasked for the writ to “ re-issue ” in order that he might obtain thefruits of his judgment by the sale of the property, and there isno evidence whatever that he intended to abandon his seizure. Ifhe had registered the second seizure, that would have been someevidence that he deemed the 1916 seizure abandoned or in abeyance,but relying on the 1916 seizure he took no steps to register again.
In a sense the Fiscal is right when he reports as above set out.The plaintiff applied for the “ re-issue ” of the writ, and a new writin the usual form (see the last three lines of section 224 of the Code)went to the Fiscal, and this form directed seizure and, if necessary,sale. The Fiscal followed the torms of the writ and eo reported.
( 487 )
The second seizure was, I think, unnecessary, but this work of super-erogation cannot affect the judgment-creditor or the purchaser at thesale. The property was in cusiodia legie, and had been so since 1916and merely awaited sale. On the application under section 224,whether the old writ or a fresh piece of paper went forth to theFiscal, the position remained the samo so long as there had been noabandonment or other act or process affecting the validity of the1916 seizure.
Then it is said that the application of the plaintiff’s Proctor ofSeptember 21, 1922, shows that he was abandoning former processas he asks for enforcement against both defendants. As a matter offact this is not so. The application is for “ execution of the decree,”and under the heading “ against whom to be enforced ” are the words“ the defendant.” I can find no “ s ” to “ defendant.” Under theheading “ mode in which the Court’s assistance is required ” are thewords by “ re-issue of writ against the defendant’s property.”Clearly the defendant, Don Simon Appu, is indicated. Even if an“s” can be found in the word “defendant” and the word“ defendant’s ” read as defendants’ I do not think that the positionwould be altered. All through these long drawn out proceedingsthe position has been perfectly clear, and one must look at whathad happened as disclosed by the documents. The application ofSeptember 21,1922, set out, under the heading “previous application,if any, and result ” what had taken place, and referred to the issue ofthe writ in November, 1921, and, as I have said, asked for “ re-issueof writ ” against tho defendant’s property. There was only onedefendant then in question, namely, Don Simon Appu, and only one“ property,” namely, Don Simon Appu’s right, title, and interestin the lands seized in 1916. This will bo seen by reference to theapplication of November, 1921, which preceded that of September21. 1922. and was ref err ed to therein as above stated. The applica-tion of November, 1921, was under section 224 of the Civil Procedure,Code, and that application,after referring to the previous proceedings,contains in the column “ against whom to be enforced ” the wordsthe “ defendants ” or “ the defendant.” The words, I agree, lookmore like “ tho defendants ” unless the “ s ” is merely a flourish ofthe pen, but in the column “ mode in which the Court’s assistance isrequired ” are the words “by re-issue of writ against the seconddefendant’s property.” Under these words are written “ videaffidavit filed.” When one turns to the affidavit the position isnot in doubt. The affidavit sets out the “ re-issue ” of the writ ofexecution of March 15,1918, against the property of the defendants*It refers to the Fiscal returning the writ and reporting that th* saleof the property seized was stayed by order of Court-. Then theaffidavit sets out the reason why the Court had ordered a stay of thesale of the property, viz., the preferment of false claims, the dismissalof these claims, and the dismissal of actions brought under section 247
1926.
Branch O.JV
Perera v.Mudalali
1926.
Branch O.J.
Perera v.MudaL&i.
( 488 )
of the Code. Then follows a charge of fraud and dishonesty againstthe second defendant, Don Simon Appu. As Don Simon Appu couldnot even attempt to answer these charges, the Court allowed anotherattempt to be made to execute the decree as prayed for by thejudgment-creditor, namely, “ by re-issue of writ against seconddefendant’s property.” When the attempt was successful and theproperty of the second defendant, Don Simon Appu, is sold, hismortgagee, Edward Simon Perera, invokes the aid of the 1916mortgage, and says that the seizure of 1916 was abandoned or inabeyance. I would agree that after the ten years had elapsed theProctor for the judgment-creditor should have been more explicitin his application under section 224. Paragraphs (/) and (j) of thatsection should have been followed with greater particularity, butthere is excuse for him and I do not think that there has been anymistake of such substance as would justify me in saying that the 1916seizure was abandoned or in abeyance or that the sale in 1922 is notreferrable to the seizure. I go so far as to say that, as the positionis so abundantly clear from all the documents considered together,
I would take the same view as I now take even if the application ofSeptember 21,1922, and that of November, 1921, asked for “ re-i6sueof writ against the defendant’s property.”
In view of the conflicting decisions on the subject of these seizuresit would seem that District Judges, Fiscals, Proctors, and others arein doubt and difficulty as to how to act in cases like the present.
If on an application under section 224 of the Code there has been aprevious levy (section 224 (/)) the Court feels bound, it appears, toissue to the Fiscal the writ as in form 43 (see the last three lines of 'section 224). When that is done, the Fiscal feels bound, it seems,to go through again in a case like the present the whole process ofseizure. When the Fiscal does this, the judgment-creditor isharassed with a claim that he has “ abandoned ” the first seizure.
If the Fiscal does not seize again he feels he is neglecting an order ofthe Court made under the last three lines of section 224, and I supposethe argument would then be that the sale was void because the Fiscalhad not obeyed the writ and seized.
How much of the doubt and difficulty which has arisen is due tothe Stamp Ordinance, 1909,1 do not know, but I hope that in futureno words will be used in such an Ordinance as will interfere withthe process, practice, or procedure of the Court. The provision asregards the stamping of writs of execution will be found at page946 of Volume II. of the Legislative Enactments. With a view toobtaining increased stamp duty, that Ordinance provides that savein the cases there set out no writ whatsoever which has once beenissued out of the court and returned by the officer to whom it was_directed “ shall on anypretext whatsoever be r i-issued.” Additionalstamp duty in applications for execution of decree could'have beenimposed without the employment of words such as these, and they
( 489 )
could not fail to introduce confusion. When once property has beenseized and the seizure registered (section 237 of the Civil ProcedureCode), it will take a good deal to persuade me that it has beendisplaced by a mortgage subsequently executed and registered.Section 238 of the Code is very clear, and I should like to add that,as a Proctor may be inexperienced or a judgment-creditor may bewithout legal assistance, a District Court should see that applicationsunder section 224 are properly made, and the Court should strictlyobserve the provisions of section 225 by satisfying itself as to theconformity of the application. If due care had been taken in thisrespect the present case would not have been even arguable.Numerous cases were cited on both sides during the course of theargument, and I have examined them to the best of my ability, andI have read others which seemed to bear on the points at issue.Amongst them are Wijewardena v. Schubert,1 Fernando v. Fer-nando* Periar Carpen Chetty v. Sekappa Chetty,s Pathervppillai v.Kandappen* Yapahamine v. Weerasuriya? Gurusami Putte v.Meera Lebbe* Andris Appu v. Kolande Asari,1 2 3 * * * 7 Fernando v.Fernando,8 Silva v. Silva,9 and the Indian cases of Kishen Lai v.Chared Singh10 Rahim Ali Khan v. Phvl Chand,11 Mujib- VUah v.Umed Bibi,12 and Madhabmani Dasi v. Lambert.13
Divergent views are expressed in some, of the local judgments,but I can find nothing in them now generally regarded as good lawwith which the conclusion I have arrived at is in conflict. Theappellant’s Counsel also cited the Privy Council case of PuddomoneeDosee and another v. Roy Muthromath Ghowdry and others14 where theview is expressed that “ generally where the party prosecuting thedecree is compelled to take out another execution his title should bepresumed to date from the second attachment.” That, however, isa very general statement, and in considering its meaning referencemust be made to the facts of the case. The words used in thejudgment are as follows :—
“ It seems to their Lordships that generally where the partyprosecuting the decree is compelled to take out anotherexecution, his title should be presumed to date from thesecond attachment. Their Lordships do nob mean to laydown broadly that in all cases in which an execution is struckoff the file such consequences must follow. The reportedcases sufficiently show that in India the striking an execu-tion proceeding off the file is an act which may admit ofdifferent interpretaionsaccording tothe circumstances under
1(1906) 10 N. L. R. 90.
2(1908) 9 N. L. R.l.
3(1910) 2 Cur. L. R. 162.
*(1913)16N.LR. 298.
*(1914) 17 N. L. R. 183.
*(1914)17 N.L.R. 467.
7 (1916) 19 N. L. R. 225.
* (1917) 4 C. W. R. 47, 49.9 (1918) 6 C. W. R. 98.
23 AU. 114.
(1896)18 All. 482.
(1908) 30 All. 499.
(1910) 37 Cal. 796 (804)<
20 W.R.133.
1926.
Bbanoh C.J.
Perera v.Mudalali
1926.
Bbakoh C.J.
Perera v.MudalaH
( 490 )
which ^t was done, and accordingly their Lordships donot desire to lay down any general rule which wouldgovern all cases of that kind; but thoy are of opinionthat when, as in this case, a very long time has elapsedbetween tho original execution and the date at whichit was struck off, it should be presumed that the executionwas abandoned and ceased to be operative unless thecircumstances are otherwise explained.”
The case came before their Lordships in May, 1873, and one of thequestions that arose was whether an attachment was subsisting andin force after the year 1844. The facts were that in 1830 a moneydecree had been recovered. In execution of that decree certain landwas attached in February, 1832. The plaintiff died, and nothing was.done between the date of the attachment in 1832 and the year 1844,when the case in execution was struck off the file, the judgment beingstill unsatisfied. I very respectfully agree that when a very longtime has elapsed between the original execution and the date atwhich it was Btruck off, it should be presumed that the executionwas abandoned and ceased to be operative unless the circumstancesare otherwise explained, and that is all that the case decides inthis respect. The view taken in that judgment is, I think,against the present appellant as showing what are circumstancesof abandonment.
I wish I dare lay down the practice which I think should befollowed in the future in the matter of execution of decree. I shoulddo so at considerable risk, however, as ground some distance awayfrom the scene of the present dispute would have to be covered andI find it impossible to reconcile all the existing decisions. I think,however, that if Proctors and others carefully follow the provisionsof section 224 of the Civil Procedure Code, especially as regardsparagraphs (/) and (j), setting out the position and clearly statingwhat they want done, and if the District Court will obey section 225and satisfy itself by reference to the record that the applicationis in conformity with tho directions contained in the precedingsection, no great difficulty should arise in the future.
I am glad to be able to come to a conclusion in favour of therespondent. The documents and the record show that Don SimonAppu sought byevery means in his power to delay proceedings inD. C. Colombo, No. 27,264. I have little doubt that when judg-ment had been obtained he gave Edward Simon Perera the mortgageof December 21, 1916 (PI), in the hope that it might some dayprove useful in defeating the claims of the judgment-creditor. Theproceedings show that Don Simon Appu could have paid the debt(see the affidavit of the plaintiff of July 19,1916, which sets out thatDon Simon Appu had received Rs. 9,000 that day from a debtor ofhis), and he had nothing to say in answer to tho plaintiff’s affidavitof November, 1921, above referred to, which charged him with
( 491 )
preventing the execution of the decree by making false claims andwith “ fraud ” and “ dishonesty.” If the mortgage were now givenpriority, the case would represent a very serious failure on the partof the Court to issue adequate process. There is no evidence thatEdward Simon Perera knew when he took the mortgage in 1016that a seizure had been registered, and, of course, even in the absenceof moral merits, his legal merits, if such had existed, must be giveneffect to. I cannot understand, however, why, if he took themortgage of 1916 without knowledge of the registered seizure,*hetook no steps after he discovered the deception practised on himuntil 1922. Apparently it is still a question (see Ounetis v. Karuna-mine*) whether notaries are bound to search the register ofseizure in addition to the register of deeds when making up adeed, but I cannot understand any prudent notary omitting to doso in the absence of written instructions to the contrary, and anyintending mortgagee giving such instructions would be suspectif a seizure had in fact been registered.
As regards proceedings on the judgment, I would not have believedit possible^ had I not seen these proceedings that a judgment-debtorcould so successfully harass and hold off his creditor as Don SimonAppu has in these proceedings succeeded in doing, and when aftera struggle of many years the judgment-creditor at last succeeds ingetting the property sold, the mortgage of 1916 is invoked by thedebtor’s mortgagee. A High Court Judge in India once said, Ibelieve, that the troubles of a litigant in that country are onlybeginning when he obtains judgment in ,his favour. If one mayjudge from the present case, there is much truth in this remark asapplied to Ceylon, but all I can say is that such a position is notcreditable to our process and procedure, and I trust that the resultof this appeal will enable a judgment-creditor to seek to recover thefruits of a judgment with less trouble and risk than heretofore, andthat it will safeguard—somewhat at any rate—a bona fide purchaserat a Fiscal’s sale.
The appeal should, I think, be dismissed, and with costs, againstthe appellant, Edward Simon Perera.
Dalton J.—
The plaintiff, Edward Simon Perera, on October 18,1923, sued thefirst defendant, Don Simon Appu alias Sineris Mudalali, for therecovery of the sum of Rs. 1,821 *43 due on a mortgage bond datedDecember 11, 1916, and registered on December 21, 1916; thesecond defendant, John Mudalali alias John Sinno, was joined as adefendant in the action as he had purchased the mortgaged propertysubsequent to the date of the bond.
1926.
Bkanoh 0«Jf
Perera
Mudalali
1 (1914) 18 N. L.R.47.
19204
Dalton J.
Perera v.MudakUi
( 492 )
The first defendant filed no answer, but the second defendantpleaded that the bond was unenforceable and invalid in law becauseit had been executed pending a duly registered seizure in D. C.Colombo, 27,264, under the provisions of section 238 of the CivilProcedure Code. He also pleaded that it had been executed infraud with the object of defeating the creditors of the first defendant.
D. C. Colombo, 27,264, wa* an action by one Don Avuneris SilvaWettasinghe against the present first defendant, Don Simon Appu,and another, commenced on August 4, 1908, claiming the sum ofBe. 1,000 and interest on joint and several promissory notes.Decree was entered for the plaintiff in that case against the presentfirst defendant on February 16,1909, and against the other defendantin that case on September 22, 1908. On those decrees the Fiscalseized certain properties at the instance of the plaintiff as againstthe defendant,-Don Simon Appu. That seizure was made on August6,1916, and duly registered on August 18,1916.
The property was then sold by the Fiscal, and on October 19,1916, he reported that the purchaser had defaulted, and failed topay the balance of the purchase price, and on the same date Counselfor the plaintiff, Wettasinghe, moved that the Fiscal be directedto re-sell the property at the risk of the purchaser, and that forthat purpose the writ be re-issued to the .Fiscal. No causeappears to have been shown by the purchaser against this orderbeing made, and on February 9, 1917, the writ was re-issued.
In February the property appears to have been sold again,followed by a default by the purchaser, and a similar application,which process was repeated by a further sale, and default in August,and in November, 1917. In each case the writ appears to havebeen extended and re-issued. The plaintiff, Don Avuneris SilvaWettasinghe, also obtained orders for the payment out to him fromtime to time of amounts recovered from the various sales, amountingin all to Rs. 1,279 * 75. What part of this total was paid to him onaccount of his claim, and what part went in costs of the action andthe subsequent proceedings and sales, does not appear.
In February, 1918, following a default by the purchaser, the writwas again extended and re-issued, a sale followed, and again thepurchaser defaulted. Again the writ was extended and re-issuedin that year, followed by a sale, and a default by the purchaser.
By this time ten years had elapsed since the date of the decreein D. C. Colombo, 27,264; at any rate in regard to one of thedefendants in that action. Accordingly, on November 23, 1921,Counsel for the plaintiff in that action again applied for theexecution of that decree, at; the same time filing an affidavitalleging fraud on behalf of the judgment-debtor. Notice of thatapplication was served upon Don Simon Appu, and he had nocause to show against, the application being granted. The writ wasaccordingly re-issued, and the property, it is stated, was eventually
( 493 )
seized by the Fiscal on October 5, 1922, sale held on November 6,and the properties purchased by the second defendant. The latterobtained Fiscal's transfers for the properties dated February 28,1923, which were registered on May 14,1923.
The question for consideration and determination is whether ornot the Fiscal’s sales at which the second defendant purchased wasunder the seizure of August 5, 1916, or under an entirely separateand distinct seizure of October 5,1922. If the answer is that it wasunder the seizure of August 5, 1916, then the plaintiff, EdwardPerera’s mortgage bond of December 11, 1916, is under the provi-sions of section 238 of the Civil Procedure Code void as against allclaims enforceable under the seizure.
The learned trial Judge came to the conclusion that the sale wasin respect of the seizure of August 5, 1916, and dismissed plaintiff’saction, with costs. From that decision he now appeals.
It would appear at first sight, after the sale to the purchaser inAugust, 1916, that it would be necessary for the Fiscal to seizethe property again when the writ was extended and re-issued, butthis he has not done. There have been in fact, it is stated, only twoseizures of the property throughout these lengthy proceedings : oneon August 5,1916, and the second on October 5, 1922. The earliersales not having been completed by transfer owing to the defaultof the purchasers, fresh seizure after each sale was presumably notnecessary. Wendt J. in Wijewardene v. Schubert1 points out thatit may be said that “the seizure is regarded as continuing until theconfirmation and completion of the sale, and if that sale be set asidefor irregularity, a new one could properly be held under that seizure.”
I think, therefore, the question to be answered on this appeal willdepend upon iwhat answer is given to a second question. Was theseizure of October 5, 1922, by the Fiscal necessary for the purposeof the execution of the decree under the writ in the hands of theFiscal at the time ? If it was necessary, then, in my opinion theresulting sale was in respect of that seizure ; if it was not necessary,
I do not think that anything done by the Fiscal in respect of thatsecond seizure could in law affect the position and rights of theparties resulting from the seizure of August, 1916. This is inaccordance with the decision of the Court in Periar Carpen Chetty v.Sekuppa Chetty (supra), which was cited with approval in AndrisAppu v. Kolande Asari (supra). I find support for this conclusionalso in Puddomonee Dossee v. Roy Chowdry and others (supra) decidedby the Privy Council in 1873 :—
“ It seems to their Lordships that generally, where the partyprosecuting the decree is compelled to take out anotherexecution, his title should be presumed to. date from thesecond attachment. Their Lordships do not mean to laydown broadly that in all cases in which an execution is110 N. L. R. 94.
1926.
Dalton &
Perera v.MudaU&i.
( 494 )
1926.
Dauok J.
Perera t>.Mudalali..
struck off the file, such consequences must follow. Thereported cases sufficiently show that in India the strikingan execution proceeding off the file is an act which mayadmit of different interpretations according to the circum-stances under which it was done, and accordingly theirLordships do not desire to lay down any general rule whichwould govern all cases of that kind; but they are ofopinion that when, as in this case, a very long time haselapsed between the original execution and the date atwhich it was struok off, it should he presumed that theexecution was abandoned and ceased to be operative,unless the circumstances are otherwise explained.”
The case of Kisken Lai v, Charat Singh (supra) is one in which thePrivy Council’s decision was applied. It was alleged there that atthe date of the mortgage (1885) sued on there was a subsistingattachment. There had been an attachment in 1883, but no saletook place thereunder, and the proceedings therein had been struckoff some considerable time before the mortgage was made. Theproceedings in fact appear to have been dropped. A fresh attach-ment was, however, made in 1887, and under that the propertywas sold. The Court held that as the party prosecuting the decreewas compelled to take out another execution, his title should bepresumed to date from the second attachment.
It seems to me that although a very long time has elapsed in thiscase between the original execution and the sale by the Fiscal in1922, that lapse of time has been adequately explained. Therehas been no withdrawal of or striking off the proceedings. Thesales proved abortive owing to the fraud of the judgment-debtor,Don Simon Appu, who seems to have had no answer whatsoeverto that charge, when application was made under the provisions ofsection 337 for execution of the decree notwithstanding the lapseof ten years from the date of the decree. That application, coupledwith the previous attempts to obtain the fruits of his judgment,is quite inconsistent with any argument that there had been anyabandonment on the part of the applicant. Whether or not anapplication under section 337 is a step in the former proceedings oran entirely new proceeding must depend upon the circumstances.In Rahim Ali Khan v. Phvl Chand (supra) Knox J. refers to a case inwhich an application under section 230 (equivalent to section 337of our Code) was held to be continuous with previous proceedings inexecution. He adds : “ It cannot be presumed.that the Legislatureintended him (the decree holder) to suffer because, either from adesire not to harass unnecessarily or owing to obstacles for whichthe decree holder is not responsible, the property covered by theapplication is sold piecemeal and the Court has to be reminded tocomplete the assistance it ordered.1*
( 495 )
In the instructions to the Fiscal, which preceded the allegedseizure by the latter on October 5, 1922, I can find nothing whichsuggested any withdrawal or abandonment of the first seizure, orwhich directed the Fiscal to make a second seizure. They seem tome to differ in no way from the instructions given on the re-issucof the writ on earlier occasions. The application to the Fiscal ofNovember 22,1921, which is a printed form, is headed “ Applicationfor execution of a decree by seizure and sale of property.” But ifthe body of the form is looked at, it will be seeD that the previousproceedings are set out, and all that is asked for therein under thesub-head “ Mode in which the Court’s assistance is required ” is setout in the following words : “ By re issue of writ against seconddefendant’s property; vide affidavit filed.” Exactly the same formwas followed on September 21, 1922, when the request was forre-issue of the writ against the defendant’s property, and the sameorder was made on that application.
The learned trial Judge points out that he cannot find anywhere,throughout the journal sheet minutes in D. C. Colombo, 27,264,that there was in fact any second seizure, and I have been equallyunsuccessful. The condition of the writ is so torn and dilapidated,that it is impossible now to follow the numerous endorsementsthereon or to ascertain if any or what returns have been made.It appears to be the case that the Fiscal’s sale report of November 18,1922, makes the first and apparently the only reference to a seizureon October 5, 1922. Why, or under what circumstances, thatseizure was made is not stated. The subsequent transfers do nothelp Exhibit D 2/2 recites the writ of execution dated September25, 1922, which was the result of the extension asked for onSeptember 21, 1922, to which I have referred, and further goes onto recite “ and whereas the Fiscal of the said province through hisdeputy at Kalutara did cause to be seized and taken the propertyherein described.” Here, however, there is no reference to the dateof seizure. The recital is applicable as well to a seizure of August 5,1916, if it was still existing, as to any subsequent seizure, so far asthe words are concerned. It is true that the plaintiff’s bill of costsinclude an item under date September 5, 1922, in the followingterms: “ drawing letter to Fiscal pointing out property of thedefendants.” The argument based upon that is, why should it benecessary to point out property already seized by the Fiscal andin his custody unless the earlier seizure had been abandoned orwithdrawn. A detailed examination of the bill, however, showsthat the same item appears under the dates February 18, 1918,and November 11, 1921. Hence any importance attributable tothe item of September 25, 1922, as going to show the necessityin the mind of plaintiff’s Proctor of a fresh seizure at that datedisappears.
27/34
1986.
Dalton J.
Perera «.Mudalali
< 496 )
Lastly, the omission to register the second seizure may be saidto be entirely consistent with the acts, and to confirm the reliance,of the plaintiff in D. C. Colombo, 27,264, upon the seizure of 1916.
The conclusion I have come to is that if there was a fresh seizureon October 5, and the evidence of that is not entirely satisfactory,it was quite unnecessary, inasmuch as the property seized was atthe time already under seizure and in custodia legis.
In my opinion the judgment of the learned trial Judge is correct,and the appeal of the plaintiff against the second defendant shouldbe dismissed, with costs.
Jayewabdene A.J.—/
This is an action on a mortgage bond. The second defendant,who has been joined as a subsequent purchaser in execution of themortgaged property, claims the property free of the mortgage onthe ground that it is void as against his Fiscal's transfers. Thefacts on which the question arises are matters of record and do notadmit of any doubt or dispute. The controversy is with regard totheir legal effect. On February 16, 1909, the first defendant, themortgagor, was decreed to pay plaintiff in case No. 27,264, D. C.Colombo, a sum of Rs. 1,000 with legal interest and costs. OnNovember 6, 1913, an application was made, and allowed, forexecution of the decree “ by issue of writ against the defendants’property.” On January 11, 1916, the writ was returned to Courtunexecuted. On February 2, 1916, a fresh application undersection 224 was made for execution “ by re-issue of writ againstthe second defendant’s property.” Application ** to issue writ ”was allowed on July 10, 1916. On August 16 the decree holderobtained leave to bid for and purchase, and also an order directingthe Fiscal to give him credit to the extent of his claim under section272 of the Code. Under this writ, which was issued against thesecond defendant’s property only, certain lands were seized onAugust 5, 1916, and the seizure registered on August 18 the sameyear. One of the lands was sold, but the purchaser made defaidt,and the land had to be sold at the risk of the purchaser. Between1916-1918 this same land was sold about five times, and eachtime the purchaser made default. It would also appear that inrespect of some of the lands seized including the one in questionhere, claims had been preferred and their sale had been stayed.By February, 1919, ten years had expired after entry of decree, andunder section 337 no subsequent application to execute it could begranted unless the decree holder satisfied the Court that the judg-ment-debtor had by “ force or fraud ” prevented the execution ofthe decree within the ten years. Therefore, when on November 11,1921, a fresh application under section 224 was made for execution“ by re-issue of writ against the second defendant’s property,” asthis application was made ten years after decree, an affidavit was
1926.
Dalton J.
Perera v.Muddlali.
( 497 )
filed with the application stating that complete satisfaction couJdnot have been obtained “ all these days ” owing to the fraud anddishonest conduct of the second defendant. The second defendant'sProctor had no cause to show against the allowance of the appli-cation, and it was accordingly allowed. On February 8, 1922, theplaintiff again applied for and obtained leave to bid for andpurchase the property of thq debtor, and also an order authorizingthe Fiscal to give him credit up to the amount of his claim. OnSeptember 21,1922, another application in terms of section 224 wasmade for execution of theUecree “ by re-issuing of writ againstthe defendants’ property.” This application was also allowed, anda fresh writ was issued to the Fiscal on September 22, 1922, forseizure and sale of the second defendant’s property. On the receiptof this writ, the Fiscal seized the property referred to in the plainton October 5, 1922, and sold the same on November 6, 1922, whenthe second defendant became the purchaser. He has obtainedtwo Fiscal’s conveyances, D 2/2, D 3/2, in which it is statedthat the lands were seized and sold by virtue of the writ ofexecution bearing date September 25, 1922. The plaintiff has,in his bill of costs, charged the defendants fpr attending Court tore-issue writ on September 22 and for drawing a letter to the Fiscalpointing out property of the defendants for seizure under this writ.
The position emerging from the above facts is as follows :—
The lands in claim were seized under a writ issued on February 2,1916, and the seizure duly registered. The lands were not sold underthat seizure. A fresh writ was issued on September 25, 1922, and'they were again seized on October 5, 1922, and sold under thisseizure. This seizure was not registered, but its non-registrationis immaterial. The question is whether the sale can be treated as asale following on the seizure of August 5, 1916, or must it not beregarded as a sale under the seizure of October 5, 1922, as in fact itwas. Now, it has been held by a'Bench of three Judges (one of theJudges dissenting) that there is nothing in the Civil Procedure Codeto prevent the re-issue of a writ in the sense of its being issued againfor execution or further execution; and that when a writ is sore-issued the Fiscal can continue execution proceedings from thepoint at which they were stopped owing to the expiry or return ofthe writ. Andris Appu v. Kolande Asari (supra). “In my opinion,”said De Sampayo J. in that case, “ the Fiscal on the re-issue ofa writ need only do such acts as are under the circumstances ofeach case necessary for further execution of the decree. Moreover,section 224 itself provides for the judgment-creditor stating in hisapplication the mode in which the assistance of the Court is required,whether (for instance) by the attachment of property or otherwise.Surely the last words ‘ or otherwise ’ authorizes the judgment-creditor, who has already seized property, to say that he requiresthe assistance of the Court by re-issue of the writ for the sale of the
12(61)29
Jayewab*
DENE A.J.
Perero v*Mudalali
( *98 )
IMS. property so seized.” In that case the Court accepted, with approvalJavbwar- the decision in Periar Garpen Chetty v. Sekappa Chetty (supra), wheredbnb A.J. it was held that an order for re-issue of a writ on fresh stamps wasPgrera v. not a cancellation or withdrawal of the original writ, nor of a seizureMudaUUpreviously effected and registered under it, and that a fresh seizure
under a re-issued writ did not operate against the continued validityof the first seizure. It was an action under section 247 of the Codefor a declaration by an execution-creditor that certain propertywas liable to be sold under his writ. The property had been seizedunder his writ and the seizure duly registered. Three years laterwrit was re-issued on fresh stamps on a fifth application for theextension and re-issue of the writ. Under thi8 writ the Fiscalpurported to re-seize the property. In the meantime the judgment-debtor had transferred the property, and the transferee claimed it,when seized, and his claim was upheld. Hence the action. It washeld that the re-seizure was unnecessary, and that the property wasliable to be sold under the first seizure. Hutchinson C.J. said :—
“ In this case the writ was returned by the Fiscal on July 25,1907,‘ for an extension of time.’ The creditor applied onAugust 26 for execution ‘ by re-issue of writ,’ and theorder of the Court on the 27th was that the application is* allowed, on fresh stamps.’ I do not think that the Courtwhen it made this order intended to cancel or withdrawthe original writ, and thereby remove the seizure whichhad been made under it. The original writ was notrecalled, but was ordered to be re-issued ; and in myopinion the seizure made under it, and the registrationof the seizure, still remained in force.
“ I would, therefore, answer the first issue by declaring that theseizure made on November 8, 1905, is still in force ; andin answer to the third issue, declare that the seizure ofMay, 1908, was not necessary and did not operate againstthe validity of the first seizure.”
In the present case the facts are not the same. The executionproceedings have gone a step further, and the property seized hasbeen sold under the second seizure. Further, the application forexecution under which the first seizure was made was for issue ofwrit against the second defendant’s property only, but the appli-cation under which the second seizure was effected was for re-issueof writ against the defendants’ property, that is, the property ofboth defendants. The property seized is, no doubt, the propertyof the second defendant, but, nevertheless, a fresh applicationfor execution became necessary as the plaintiff intended to seizeproperty belonging to the first defendant also. I do not say thatif any property belonging to the second defendant had been seizedon a previous issue of the writ that a re-seizure of the property
( 499 )
would have been necessary (that is apart from the effect of thelapse of ten years) under the new writ, but the point is, that a freshapplication for writ had to be made, as in the previous applicationsthe writ was asked for against the second defendant’s propertyonly. As the Judicial Committee said in Puddomonee Bosses v.Chowdry (supra), cited by learned Counsel for the appellant, “ gener-ally, where the party prosecuting the decree is compelled to take outanother execution, his title should be presumed to date from thesecond attachment.” A fresh writ was issued and a seizure hasbeen effected under it, the expenses of issuing this writ and ofpointing out property under it have been charged to the defendant,and the sale has taken place under the writ so issued, can it thenbe said that the judgment-debtor or his transferees, or mortgagees,are not entitled to take advantage of any benefit accruing under it ?In Periar Carpen Chetty v. Sekappa Chetty (supra) the proceedingstook place before the sale under the re-seizure was held, and there-seizure was deolared unnecessary, and the sale of the peopertymust, therefore, have been held under the original seizure. Themistake which has created the difficulties in this case was correctedbefore the sale. If the same thing had happened here, the case ofPeriar Carpen Chetty v. Sekappa Chetty (supra) would have applied,but in view of what has actually happened, can it be said that whenthe Fiscal says that he seized and sold the property under a writissued on September 25,1925, it should be construed not as a seizureand sale under that writ but under a previous writ under which theFiscal did not in fact seize and sell the property ?
It is argued that the second seizure was a useless and unauthorizedproceeding on the part of the Fiscal, and that no one should sufferin consequence. The Fiscal was, however, only carrying out thedirections of the Court which was put in motion by the judgment-creditor, and in seizing the property in 1922 he acted under section226 of the Civil Procedure Code, which requires him'to seize and sellsuch property of the judgment-debtor as may be pointed out by thejudgment-creditor. The responsibility for the seizure in 1922 restsentirely on the judgment-creditor, who pointed out the propertyfor seizure. Most of these difficulties arise owing to the failure ofjudgment-creditors or their Proctors to keep in touch with executionproceedings. When a writ is returned to Court not completelyexecuted, they do not care to ascertain what steps the Fiscal hastaken under it, but simply apply for a re-issue against the propertyof the judgment-debtor, instead of asking the Court to direct theFiscal to continue the proceedings from the stage which they hadreached when the writ was returned. What an execution-creditorshould do in such a case was clearly indicated by *De Sampayo, J.in the passage I have quoted above from his judgment in AndrisAppu v. Kolande Asari (supra). In the present instance, theexecution-creditor, in his application for writ, should have asked the
27/35
1926.
Jayewab-DHNE A.J.
Perera v.Mudalali
1926*
Jaybwar-DENE A.J.
Per era v.
Mudalali
( 500 )
Court to direct the Fiscal to sell property already seized, and toseize and sell other property if necessary. Instead of doing so, hehas misled the Fiscal by actually pointing out for seizure in 1922property which had already been seized in 1916. Rightly orwrongly, a second seizure has been effected at the instance of theCourt and the judgment-creditor and a sale held under it. It isa fact which cannot be ignored in deciding this case. Not muchimportance can be attached to the fact that in the applications forwrit in 1922 “ re-issue ” of writ is asked for. This term is usedindifferently to indicate the issue of an entirely fresh writ as wellas the “re-issue” of a writ when such is permissible inlaw. Seethe observations of Wendt J. in Muttappa Chetty v. Fernando.1The Stamp Ordinance has apparently adopted the popular misuseof the term. However, when in September, 1922, the judgment-creditor’s Proctor asked for “ re-issue ” of writ he was not entitledto it under the Civil Procedure Code or the Stamp Ordinance, and hisapplication must be regarded as one for the issue of a fresh writ,which was in fact issued. The fatet that he wrongly asked for a“ re-issue ” can therefore have no significance. Further, in thecircumstances of this case, I think the first seizure has ceased tobe operative by “ circumstances of abandonment.” The fact thatthe decree-holder thought it necessary to make a second applicationfor leave to bid for and purchase the property in reduction of hisclaim appears strongly to support this view. The decree holderappears to have thought that on the expiration of ten years afterdecree the decree ceased to be capable of execution unless heestablished fraud or force on the part of the judgment-debtor, andthat the execution proceedings also came to an end, and that a freshwrit and fresh steps in execution had to be taken, and so the originalwrit and all the steps taken under it were, I think, abandoned andsteps taken de novo. It may be that the original seizure is stilloperative, and no sale has taken place under it. It may be thatit is possible for the judgment-creditor to sell this property underthat seizure which has not been removed or withdrawn by order ofCourt. But it seems to me to be impossible to regard the sale atwhich the second defendant purchased the property as a sale basedon the original seizure. His claim is not one enforceable under thatseizure. It was also contended for the appellant that the view'taken by the decree holder of the effect of the lapse of ten yearsunder section 337 was right, and that as the right to execute thedecree was extinguished, the steps taken in aid of execution mustalso be regarded as of no effect, and that a fresh application hasto be made for execution under section 224. In support of thisview Silva v. Silva (supra) was cited. For the respondent, it wascontended that even after ten years afresh application for executionshould be treated as an application in continuation or revival of the'(1906) 9 N.L. R. 150 (154).
1986*
( 501 )
previous application, the progress of which has been interrupted byclaims and actions under section 247 ; and reliance was placed onthe case of Rahim Alim Khan v. Phul Chand (supra), a decision ofa Full Bench. A close examination of that case shows that it is notan authority for the proposition in support of which it was cited.There, there was no second application for execution in theprescribed form, and the Court refused to treat an application toCourt to enforce an order for execution already made as a substan-tive application under section 235, that is, section 224 of our Code.But the Court stated clearly that if the application had taken theform of a new application under section 235 (224) it would havetreated it as a “ subsequent application ” under section 230 (337).For the sake of clearness in the new Indian Code (see section 48)the words “ fresh application ” have been substituted for the words“subsequent application.” See also Mujib-Ullah v. Umed Bibi(supra) and Madhabmani Dasi v. Lambert (supra). The principlelaid down in these cases cannot apply to the present case in veiw of thefact that we have here a fresh application in all respects conformingto the requirements of section 224, and where the “ mode in whichthe Court’s assistance is required ” is different in the fresh appli-cation from the mode in the application of which the fresh one isclaimed as a continuation or revival. The subsequent applicationin question here is not one for the continuation of executionproceedings commenced under an order which had been previouslygranted, as it might have been. Such an application, the IndianCourts have laid down, cannot be regarded as one in continuationor revival of a previous application.
If the question had arisen in the execution proceedings, andbefore the property had been sold and conveyed, it may be that itwould have been possible to adjust matters and to declare underwhich writ the property had in law been seized, and then to have itsold under the proper writ and seizure, but when execution proceed-ings have come to an end such an adjustment is not possible, andthe property must be taken to have been sold under the writ underwhich, the Fiscal has stated in his conveyance, it was in fact sold.For instance, if the plaintiff had claimed this property when seizedin execution on October 5, 1922, the Court might have declared,as it did in Periar Carpen Chetty v: Sekappa Chetty (supra), thatseizure under the second writ was unnecessary, and that as theseizure under the first writ was still subsisting, the property shouldbe sold under it. In the present case that can no longer be done.The property has been seized and sold under the second writ, andthe rights of the parties must be decided upon that basis. Thelearned District Judge in his judgment says that there is no evidenceof a second seizure. There he is not correct. The fact that therewas a seizure on October 5,1922, is clear from the Fiscal’s sale report
Jayewab-
DENE A.J.
Perera v.Mudalali
( 502 )
1926.
Jaybwab-DEMB A.J.
Ptrera v.MudaUAi.
to Court. It is upon the basis of the absence of a second seizurethat the learned District Judge decided the case in favour of thesecond defendant.
In my opinion, therefore, the second defendant is unable toclaim the benefit of the registration of the seizure of August 5,1916,as the sale at which he purchased the property did not followon that seizure. That seizure has been abandoned, or is inabeyance.
As to the merits of the plaintiffs claim. There is no doubt thatthe judgment-debtor, the first defendant in this case, has done hisbest to delay and harass the judgment-creditor in obtaining satis-faction of the decree in his favour. But in the absence of anyevidence in the case it is impossible to say that the mortgagee, theplaintiff, was acting in collusion with the judgment-debtor, or wasa party to any fraud. There was an allegation of fraud in thesecond defendant’s answer, but no issue was framed on it, andthere is no evidence to support it. When a mortgage bond wasexecuted in December, 1916, the lands mortgaged had been seized,and the seizure registered. It was, therefore, void as against allclaims enforceable under the registered seizure. If the mortgageeknew of the seizure and its registration, it is difficult to see howthe parties to the bond^could defraud the judgment-creditor or apurchaser in execution by entering into a void transaction. It isonly the mistake of the judgment-creditor in causing the seizureof the property again in October, 1922, that has enabled themortgagee to assert his rights under the bond. In 1916 he couldnot have foreseen that the judgment-creditor would commit thismistake in 1922 and have had this bond in readiness for such acontingency. It is common knowledge that transactions regardingland are entered into without searching the register of seizures:Ouneris v. Karunaratne,1 where two eminent Judges of this Courtdisagreed on the question whether notaries are bound to searchthe register of seizure in addition to the register of deeds beforedrawing up a deed. In these circumstances I am inclined to thinkthat however reprehensible the conduct of the mortgagor might bethe mortgagee was acting bona fide and is entitled to insist on hislegal rights.
I would allow the appeal, with costs, in both Courts.
1 (1914) 18 N. L. H. 47.
Appeal dismissed.