PERERA v. NOVISHAMY

048-NLR-NLR-V-29-PERERA-v.-NOVISHAMY.pdf


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*927.
Present: Schneider J.PERERA v. NOVISHAMY
146—C, R, Panadure, 13,438,
Writ—Reissue after sereral years—Judgment-debtor respondent toapplication—'Copyofpetition—Duediligence—Orderregarding
satisfaction of decree—Final order—Appeal—Lease of Court—Civil Procedure Code, s. $47—Court of Bequests Ordinance,No, 12 of 1895, s. 80,
An application for the reissue of a writ, where more than one yearhas elapsed between the date of the decree and the applicationshould be made by petition to which the judgment-debtor is madea respondent and a copy of the petition should be served on thejudgment-debtor.
The order of a Court of Requests adjudicating on an issue,relating to the satisfaction of a decree; is one having the effect of afinal judgment with the meaning of section 80 of the CourtsOrdinance; and where such an order was made in the course of ahypothecary action, an appeal may be taken without leave of Court.
A
PPEAL from an order of the Commissioner of Requests,Panadure.
Zoysa (with Rajapakse), for appellant.
Weeraaooriija, for respondent.
'November 29, 1927. Schneider J.—
In this action, a hypothecary decree in favour of the plaintiff was■entered on July 20, 1917. The writ of execution issued in Januaryand reissued in May, 1919, was returned unexecuted for no defaulton the part of the decree holder. The return to the third issue ofthe writ is the following endorsement on the writ itself “ saleadjourned at the request of the plaintiff who has allowed the defend-ant two months' time to settle." It is dated December 20, 1919.The next application for the issue of a writ was made in October,1926. A period of nearly seven years having elapsed, the Courtrightly directed notice to issue on the judgment-debtor. I take itthat this direction was given in view of the provisions of, section 347of the Civil Procedure Code. But this order is not in strict com-pliance with the provisions of that section as I shall presentlyindicate. In view of the arguments which were presented upon this
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appeal, and the frequency with which applications for writs in cases-ef this kind occur in appeals* which come up before this Court, Iwould make a few observations upon the provisions of the Coderegarding such applications. The application under considerationdoes not appear to comply strictly with the requirements of section-347. According to that section the application should be by-petition and the judgment-debtor should be named as respondent.-The present application is simply in the tabular form No. 42 inischedule II. of the Code, and the words “ I pray ” in column 10*which are to be found in the prescribed form are omitted. No*respondent is made nor is the form strictly adapted to the decreewhich is a hypothecary decree directing the sale of the specific land*mortgaged. It seems to me that an intelligent application of thatform to the requirements of the present application would have beento give the name of the plaintiff describing him as decree holder and!petitioner, and the name of the first defendant describing her asjudgment-debtor and respondent, and in column 10 “I pray for an*order to issue to the Fiscal to sell the property mentioned in thedecree and if the sum realized be not sufficient for the satisfactionof the decree in full and the costs of this execution the balance be-realized by the seizure and sale of other property of the judgment-debtor. ” The form given in the schedule is headed. "‘Form of-application for execution’ of a decree by seizure and sale of movableproperty.’1 (See sections 224 and 225). That heading is- not quiteaccurate. It should be form of application for execution of “ adecree to pay money ” as indicated by the heading of the group ofsections in which section 224, which prescribed the particulars to begiven in applications for execution of a decree, occurs, upon such:an application being made section 347 requires not that notice of.the application be given, but that the Court “ shall Gause the petition:to be served on the judgment-debtor.” I think what was meant was-not the petition itself but a copy of it.
Upon receiving notice of the application under consideration the*judgment-debtor appeared and opposed the application upon twogrounds: One of them, that due diligence was not ” used on thelast preceding application to procure complete satisfaction of- the*decree,*' does not appear to have been pressed in the lower 'Court.The other was that the decree had been satisfied by payment. No-payment had been certified and in view of the provision in sections349 that " no payment or adjustment shall be recognized by anyCourt unless it has been certified,” a motion supported by an affi-davit was made on behalf of the first defendant *' for a notice on:the plaintiff to show cause (if any) why payment should not becertified.” This motion is not in order. Section 349 requires thatthe Court should be ” informed by petition” of any payment or
1927:.
Schneider:
J,
Percra v.NpvisKamyt
( 244 )
1927.
Schneider
J.
Perera v.2?.oviehamy
adjustment. The application should have been by petition, there-fore. But no objection was taken to the form of the application,and the question whether payment had been made was inquired into.Upon the evidence before it the Court held against the first defend-ant's contention that the decree had been paid and satisfied andthereupon directed that writ should issue according to the applicationof the plaintiff. It is from /those orders that his appeal is taken bythe first defendant. I accept the findings of the Commissioner uponthe questions of fact. I agree with him that the* evidence regardingpayment is contradictory and unreliable, and that. the first defend-ant's explanation of her failure to produce ■ receipts for the allegedpayments and the fact that the title deeds of the property were inthe possession of the plaintiff * render it highly improbable that thedecree had been paid and satisfied, v
On appeal a long argument was addressed to me on the groundthat due diligence had not been used as required by section 337.There is no room for that argument, in'view of the endorsement onthe return to the writ to which I have already referred showing thatexecution had been stayed by the- decree holder at the request of thejudgment-debtor. It was only at the close of the* argument that Idiscovered this endorsement which appears to have escaped the noticeof counsel for both parties. In view of the endorsement section 337has no application.
Mr. Weerasooriya took .the preliminary objection that the ordersagainst which this appeal was taken are mot appealable orders, andthat in any event there was no right of appeal without leave pre-viously obtained in accordance with the provisions of the Courts ofBequests Amendment Ordinance, No. 12 of 1895. He argued thatthe right of appeal conferred by section 80 of the Courts Ordinance,No. 1 of 1889, was curtailed by the provisions of section 39 of thatOrdinance. This argument raises a question of practical importanceand I would here state the reasons for the ruling I gave against theobjection.
In substance this appeal is from the adjudication of the Commis-sioner upon the question whether the decree was satisfied bypayment. His order that the writ should reissue depends andfollows on his holding that the decree was not satisfied. Section 80is the section which confers the right of appeal in Courts of Bequestscases. According to its provisions, any person “ dissatisfied withany final judgment or any order having the effect of a final judgmentmay (excepting where such right is expressly disallowed) appeal againstany such judgment or order for any eiror in law or in fact/'The only material variation between this section and section 75 whichconfers the right of appeal in District Court cases is thepresence of the word “ final " in this section.. It . is because of this
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-variation that appeals from certain orders in District Court cases areallowed find are listed in this Court ag Interlocutory appeals, butare not allowed in Courts of Request cases. If the order holdingthat payment of the decree had not been made is to be regarded asan order having the effect of a final judgment, there can be noquestion but that there is an appeal against that order. Mr. Weera-sooriya argued that it is not such an order, that the orders which areto be considered such are those which finally dispose of the actionfor some reason before the action is brought to trial; or, in otherwords, orders made before the decree in the action is entered ns, forinstance, an order dismissing the action because it is wroiigly consti-tuted or that the Court has no jurisdiction. To sustain this conten-tion he pointed to section 39 of the Courts Ordinance where theextent of the Appellate jurisdiction of the Supreme Court regardingappeals in Courts of Requests cases is described as being for the44 correction of all errors in any final judgment or order having theeffect of a final judgment," whereas the language in regard to District-Courts is that it extends to the “ correction of all errors ” withoutmention of judgment or order. I am unable to agree with this argu-ment. First, I do not think that section 39 was intended to limitwhat is conferred by a subsequent section in the same Ordi-nance, specially as in the subsequent section it is explicitlyenacted that the right conferred by it is to have effect unless it is4 4 expresly disallowed. * * Section 39 cannot be read as expresslydisallowing the right conferred by section 80. Nor do I think thatthere is any difference in the language used in the two sections.Section 80 confers a right of appeal against a judgment or final orderhaving the effect of a final judgment for any error, and section 39enacts that the Supreme Court has the power to correct any error inany such judgment or order. The error in a judgment or ordermust mean the error upon which it rests or in consequence of whichit was pronounced or made. It appears to me that the holding thatthe decree had not been satisfied clearly comes within the descriptionof a “ formal expression of any decision of a Civil Court which is nota decree," which is the definition of an order given in the CivilProcedure Code. That Code and the Courts Ordinance are ancillary,and it would be in consonance with the intention of the legislaturewhere the provisions of the two Ordinances permit, to make use ofa definition in one of them for the interpretation of a provision inthe other. Upon evidence the Court in this action had adjudicatedfinally upon the issue which arose as to the satisfaction of the decree.Its ofldeij upon that adjudication is therefore obviously an orderhaving the effect of a final judgment on the question adjudicatedupon. The word “ judgment ” in section 80 appears to me* to beequivalent to “judgment" and decree in section 75 of the CourtsOrdinance.
1987.
SCHNBtDER
' * J.*
i
Perera v.NotribhbrHy –
1927.
6qunm>ER
J.
Pertra v.
Novishamy
( 246 )
Mr. Weerasooriya next argued that the question adjudicated uponwas whether a sum of money was paid—that is whether a " debtwas paid " and that therefore there was no appeal on the facts exceptwith leave previously obtained according to the provisions ofsection 93 of the Courts of Bequests Amendment Ordinance, 189$.This argument is not sound. What that section enacts is that41 there shall be no appeal from any judgment or order in any actionfor debt/1 &c. Whether leave must be obtained would accordinglydepend not upon the nature of the incidental question, which isadjudicated upon, but whether the action is one for debt, &c- Thisaction is not one for a debt purely—but a debt involving an interestin land. The order appealed against therefore is not one pronouncedin an action for debt. Accordingly there is no necessity to obtainleave. On the merits the appeal is dismissed with costs.
Appeal dismissed-