061-NLR-NLR-V-46-PUNCHIAPPUHAMY-Appellant-and-FERNANDO-Respondent.pdf
KEUNEMAN J.—Punchiappuhamy and Fernando.
179
19<SPresent: Kean email and Jayefcileke JJ.
PUNCHIAPPUHAMY, AppeUant, and FERNANDO,Respondent.
290—D. C., AvissaweUa 3,350.
Decree—Action for recovery of lorry and damages—Failure of delivery—Formof decree—Execution—Civil Procedure Code, ss. 191 and 921.
Where in an action for the recovery at a lorry and damages till thelorry is returned, the decree declared the plaintiff entitled to the lorryand to restoration of possession and damages at Be. 50 per month, tillpossession is restored, and continued: It is farther ordered and decreedmat, if the defendant fails to restore the lorry, the plaintiff will beentitled to recover its value, which is fixed at Us. 750; in that eventthere will be no damages subsequent to date hereof.
Held, that the decree had been correctly entered in terms of section 191of the Civil Procedure Code and that in default of delivery, the procedurelaid down by section 321 should be followed.
A PPEATi from an order of the District Judge of AvissaweUa.
H. V. Perera, K.C. (with Nihal Qunesekere and S. E. J. Fernando), for.defendant, appeUant.
S. Barr Kumarakulasingham for plaintiff, respondent.
Cur. adv. vult.
March 7, 1945. Keuneman J.—
In this oase judgment was entered for plaintiff declaring him entitledto the lorry claimed by him and damages at Rs. 50 a month from June1, 1942, till the lorfy is returned to him. The judgment continued—
If the defendant faUs to restore the said lorry to plaintiff, plaintiff will beentitled to its value which I fix at Rs. 750, but in that event there will beno damages subsequent to the date hereof ”. The judgment wasdelivered on July 9, 1943.
The decree in the case declared the plaintiff entitled to the lorry inquestion and to restoration of possession of the same and damages atRs. 50 a month from June, 1942, till restoration of possession of thelorry, and continued—“ It is further ordered and decreed that if thedefendant fails to restore the lorry the plaintiff will be entitled to recoverits value which, is fixed at Rs. 750; in that event there will be no damagessubsequent to date hereof ”.
The defendant thereafter on July 14, 1943, deposited in court thedamages awarded up to date of decree and a further Rs. 750 representingthe value fixed for the lorry in the decree. On July 16, 1943, the plaintifftendered application for execution of decree by issue of writ of-possession,and this was allowed on July 20, 1943. On August 6, 1043, the DeputyFiscal of AvissaweUa returned the writ of possession unexecuted in thefollowing circumstances.
The Deputy Fiscal made his demand and proceeded to seize the lorryin question, which at the time had neither engine nor wheels. Thereport says “ The plaintiff was not agreeable to receive possession assome of the parts including the entirety of the wheels and the entirety
180KBUNBMAN J.—Punchiappukamy and Fernando.
of the engine have been removed and it was not in a condition to be puton the road. It was found that some of the parts had been recentlyremoved. The defendant on being questioned admitted .that he removedthe parts and sold them
Thereafter the plaintiff declined to withdraw the sum of Bs. 760 andclaimed damages for non-delivery. The District Judge held that “ theplaintiff has the option to proceed on the first part of the decree, i.e., forthe delivery of the lorry and for damages till such delivery withoutaccepting the Rs. 750 deposited in Court as the value of the lorry ”. TheDistrict Judge realized that this was equivalent to an order that thedefendant would have to pay the damages indefinitely, but considered thatthe defendant had brought this trouble on himself.
From this order the defendant appeals.
It appears to me that the decree in this case correctly followed section191 of the Civil Procedure Code which is as follows: “ 191. When theaction is far movable property, if the decree be fore the delivery of such,property, it shall also state the amount of money to be paid as an alter-native, if delivery cannot be had.”
I do not think we can regard ourselves as bound by Sitthambarapillaiv. Vina.8itha.mby 1 that in an action for recovery of specific movables analternative decree for payment of its value is bad, and that this section isinconsistent with sections 320-322. Subsequent decisions have disagreedwith this finding: see Sellamba v. Cathamuttu Pillai 2 and Appuhamy v.Appuhamy 3. In the latter case it was held that “ A judgment in theform contemplated in section 191 may be executed according to theprocedure laid down in section 320-322. A writ would issue for deliveryof possession in terms of No. 62 in the Second Schedule. In default ofdelivery the procedure laid down in section 321 would be adopted, andthe court having already estimated the judgment creditor's loss by notreceiving the goods in the decree, it will not be necessary to do so againunless any further loss has occurred by non-delivery ”.
I do not think it is necessary to argue the matter further, for thedecree entered in this case has not been altered or amended in any wayand is binding on the parties, and it is necessary for us to interpret andapply the decree.
I may say that the defendant misconceived his rights in thinking thathe could compel the plaintiff to accept the value of the lorry instead ofrecovering the lorry in terms of the decree. The payment into court ofBs. 750 could not prevent the plaintiff from claiming a writ of possessionunder section 320, or from getting the Fiscal to seize the property undersection 321 if the property was still available for seizure. So far theplaintiff acted correctly, but I am not able to agree with his claim thatthe defendant is bound to pay him Bs. 50 a month indefinitely. Hecould only resort to his remedies under section 321 and claim (a) writ ofexecution by seizure and sale of the defendant’s property, or (b) a warrantfor the arrest of the judgment-debtor, or (c) both these remedies. Therewas no necessity in this case to resort to section 322, because the decree» 1 N. L. B. 114.' * 2 Cur. L. B. 72. •
• 14 N. L. B. 8.
KBUNEMAN J.—The King V. Nacaratnam.
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had already assessed the value of the lorry and dealt with the questionof—damages. On these matters the decree itself is very definite. Thevalue of the lorry is fixed at Us. 750, andif the defendant fails to restorethe lorry there were to be no damages after the date of the decree.
1 think there can be no question in this case that the defendant hasfailed to restore the lorry, and the fact that by his own act he has putit out of his power to do so cannot, in my opinion, alter that. I do notthink in the circumstances we can give to the plaintiff what is in effect aperpetual decree for Bs. 50 a month against the defendant, and indeedthe decree in the. case does not permit us to do so. It may be that if thedecree had been fully considered in the first instance the District Judge' may in the decree have ordered that the damages should continue up tosome date even after the decree, but unfortunately for the plaintiff theterms of this decree are too rigid.
The order of the District Judge must be set aside. Plaintiff will beentitled to withdraw the sum of Bs. 750 deposited in court by the defendant.As the defendant has by his own act put it out of the power of the plaintiffto recover possession, and as he has materially contributed to the confusionexisting in this case, I do not make any order of costs in his favour.
Jayatilbke J.—I agree.
Appeal allowed.