PERIES v. COORAY

087-NLR-NLR-V-12-PERIES-v.-COORAY.pdf


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ms.
November S.
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Middleton.
PERIES v. COORAY.D. C., Kalutara, 1,398.
First application for execution of writ—No time limit—Civil ProcedureCode, s. 337.
There is no limit to the time within which a first application forexecution of writ may be granted.
A
PPEAL from a judgment of the District Judge of Kalutara.
In this action the plaintiff, who obtained a mortgage decreeagainst the defendant (Cooray) for Rs. 600 on May 5, 1896, assignedthe decree to one Perera, who mortgaged the said decree with thepetitioner-appellant (Fernando). The petitioner instituted action,D. C., Kalutara, No. 3,755, upon his mortgage against the mortgagor(Perera), and purchased the decree (No. 1,398) under a Fiscal’ssale held in execution of writ No. 3,755 on March 24, 1909. OnMay 13, 1909, the petitioner applied for execution of the mortgagedecree (1,398) against Cooray.
The learned District Judge refused the application on the groundof delay in applying for execution, inasmuch as no step had beentaken to have the decree executed since 1896.
The petitioner (Fernando) appealed.
Bawa (with him Balasingham), for the appellant.—The repeal ofsection 5 of Ordinance No. 22 of 1871 removed the time limit withinwhich a first application for execution may be granted. Section337, Civil Procedure Code, does not refer to a first application forexecution; it refers to a “ subsequent application.” Counsel alsoreferred to Saibo v. Silva,1 Peris v. Perera,2 Don Jacovis v. Perera,®Allagappa Chetty v. Wijesinghe.*
No appearance for the respondent.
Cur. adv. vult.
November 5, 1909. Hutchinson C.J.—
By the decree made in this action on May 5, 1896, it was orderedthat the defendant should pay to the plaintiff Rs. 500, and certainproperty was declared to be bound by and executable under thedecree. The plaintiff’s interest in the decree became vested in thepetitioner, W. K. B. Juwakinu Fernando, who on May 13, 1909,applied for a writ of execution. The District Judge refused the
134.0. fl. 77.» (1906) 9 N. L. R. 166.
* (1899) 6 N. L. R. 230.4 (1909) 1 Cur. L. R. 109.
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application because of the long delay from 1896 to 1909, duringwhich no step had been taken to have the deoree executed, and ofwhich no explanation was offered.
The right of a judgment-creditor to a writ of execution is governedby our Statute Law. Sections 218 and 225 of the Civil ProcedureCode give him the Tight, and I «an find nothing in section 337 orelsewhere which takes away the right where the decree is an old one.Section 5 of the Prescription Ordinance, No. 22 of 1871, limited theright to cases where the decree was not more than ten years old ;but that section was repealed by the Civil Procedure Code, and nosimilar provision has been enacted. It is possible that the words“ such subsequent ” in section 337, where it says that “ no suchsubsequent application shall be granted after the expiration of tenyears ” were inserted by mistake; but if so, only the Legislaturecan strike them out.
I think that the order of the District Court should be set aside,mid the case sent back for decision on the other objections takenby tiie respondent to the appellant’s application. The respondentshould pay the appellant’s costs of this appeal.
Middleton J.—
The plaintiff here obtained a mortgage decree against defendanton May 5, 1896. Shortly after the plaintiff assigned Ids decree toone Komitige Santiago Perera, thei brother-in-law of the defendant,who mortgaged the said decree with the petitioner-appellant onMarch 5, 1904. The petitioner-appellant instituted action, D. C.,Kalutara, No. 3,755, upon liis mortgage against the said Santiagoand obtained a decree against him on October 13, 1908, to seize andsell the decree in the present action. On March 24, 1909, theappellant purchased the decree under a Fiscal’s sale. The appella nton May 13, 1909, applied by petition for an order nisi on thedefendant-respondent to show cause why the decree should not beexecuted, and the properties, bound and executable, sold to satisfyliis judgment in D. C., Kalutara, 3,755.
An order nisi was granted on May 17, 1909, and the respondentfiled a list of objections on June 21, 1909: (a) That no evidencewhatever of the sale is furnished. If no conveyance is necessary, areceipt should be produced from the Fiscal to show that the petitioneris the purchaser. (6) The petitioner being in the position of anassignee, he should first apply to have himself substituted plaintiffbefore he can obtain an order nisi for the execution of the decree.
That ten years having elapsed from the date of the decree,, thepetitioner cannot execute the decree.
The District Judge, without considering the others, held on the lastobjection that the petitioner was not entitled to execution of hisdecree under section 337 of the Civil Procedure Code, and dismissedthe application.
1909.
November 5.
HuTOHnreotr
O.J.
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1909.
November 5.
Middleton
J.
The appellant appealed, and in my opinion the decision of theDistrict Judge is wrong. The words of section 337 are clear as theyapply here, that no such subsequent application shall be grantedafter the expiration of ten years from the date of the decree soughtto be enforced or of the decree, if any, on appeal affirming the same.
This is the first application for execution, and in my opinion thetime limit only applies to a subsequent application. It would seem,therefore, and I oan find.no decision to the contrary, that there isno limit now to the time within which a first application for execu-tion may be granted, as section 6 of Ordinance No. 22’ of 1871 isspecifically repealed by the schedule of the Civil Procedure Code.
In my opinion the order of the District Judge must be set aside,and the case remitted to him for further consideration and decision onthe other objections raised, taking into account the terms of section339 of the Code as to the substitution of the transferee’s name.
' As regards objection (a), it seems to me that the appellant shouldbe in possession of some written evidence to show his purchase underthe Fiscal’s sale on March 24, 1909.
The appeal will be allowed with costs.
Appeal allowed.