029-NLR-NLR-V-09-RAMEN-CHETTY-v.-FREDERICK-APPUHAMI.pdf
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Present: The Hon. Mr. A. G. LaseeUes, Acting Chief Justice, andMr. Justice Wendt.
RAMEN CHETTY v. FREDERICK APPUHAMI.
D. C., Colombo, 22,461.
Action on c decree—Disallowance of application for writ—Res judicata—
Civil Procedure Code, ss. 217, 223, and 337.
It is notopento a person who has obtained adecreeofacom-
petent Court (to maintain a separate action on such decree. Theonly courseopento such personis to enforcethedecreeinmanner
provided bytheCivil ProcedureCode.
Tambi MarikarWappu Marikarv. NainamaNdchia (1 Bal.'ISO)
disapproved.
I
N September, 1899, the plaintiff obtained a decree against thedefendant for Rs. 7,410.14 in case No. 12,955, D. C., Colombo.
Writ was issued, but it was returned unexecuted. The plaintiff
1900.June 11
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1906. on the 1st September, 1905, made an application for reissue of writ,June 12.^jje application was disallowed on the ground that the plaintiff
had not used due diligence on the last preceding application toprocure complete satisfaction of the decree. The plaintiff did notappeal against this order, but instituted the present action on theoriginal decree. The District Judge (J. R. Weinman, Esq.) dis-missed the action, holding that the refusal to reissue execution inthe previous action (No. 12,955) was a bar to the present action.The plaintiff appealed.
M. de Saram, for plaintiff, appellant.—It has been held by thisCourt that an action of this sort is maintainable. The case reportedin 1 Bal. 106 is exactly in point. In cases reported in 8 S. 0. G. 100and 2 C. L. B. 208 it has been held that assignees of decrees couldsue on their decrees. Now, assignees cannot have any greater rightsthan their assignors had. It therefore follows that their assignors,that is to say judgment-creditors, could sue on their decrees. Theprovisions of the Civil Procedure Code have not altered the commonlaw rights of an individual to institute an action on a decree. TheCode merely enacts the procedure to be followed in executing adecree. Under section 337 of the Code a judgment is prescribed inten years, and section 347 of the Code requires notice to be issuedto the judgment-debtor, where application for execution is madeafter the lapse of one year between the date of decree and the appli-cation for its execution. The judgment creates a debt, for non-payment of which an action can be brought on it.
Walter Pereira, K.C. (Samarawickreme with him), for defendant,respondent.—The effect of allowing an action of this sort will be tonullify all the provisions made in the Code to prevent judgment-debtors being unnecessarily harassed. It has been held in Indiathat in Courts regulated by the Civil Procedure Code the only wayin which a decree could be enforced is in the manner provided forby the Code, and not by action on the decree. The cases in pointare collected and cited with approval in 8 Bombay 1. The PrivyCouncil has taken the same view (26 W. R. 82). The cases reportedin 8 8. C. G. 100 and 11 G. L. R. 208 are distinguishable, but allthat need be said here is that this point was not raised or consideredin those cases..
De Saram in reply.
'Cur. adv. vult.
12th June, 1906. Lascelles A.C.J.—
This is an appeal from a decision of the District Judge of Colombothat it was not competent for a decree-holder to bring an actionupon the decree to enforce his debt.
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The plaintiff in action No. 12,955 obtained judgment for Be.7,410.14 on the 21st September, 1899. Writ was issued on the29th September and subsequently reissued several times.
Finally,, on the 1st September, 1905, au application to reissueexecution was disallowed on the ground that the Court was notsatisfied that due diligence was used on the last preceding applicationto procure satisfaction of the decree. The plaintiff now brings hisaction upon the decree. The present appeal is from the dismissalof the action by the District Judge.
The general principles on which actions may be brought to enforcejudgments are clearly stated by Latham J. in Merwanji Nowroji v.Ashabai (1): “ There is no doubt of the general principle, as laiddown in Williams v. Jones (2) by Parke B., whose words wereadopted by Blackburn J. in Godard v. Gray (3) that ‘ where a Court ofcompetent jurisdiction has adjudicated a certain sum to be due fromone person to another, a legal obligation arises to pay that sum onwhich an action of debt to enforce the judgment may be maintain-ed. ’ The same principle is recognized by the Civil Law wherethe action founded on the prior judgment is known as the actiojudicati.”
It may be added that actions of debt upon judgment are notfavoured by the English Courts, “being for the most part odiousand oppressive Biddleson v. Whitel (4)
In support of the decision of the District Judge we have beenreferred to a decision of the Indian Courts to the effect that theprovisions of the Indian Procedure Code preclude judgments ofCourts regulated by that Code from being enforced by separateaction; and it is urged that our Code of Civil Procedure being basedon that of India, the same principle should be followed here. TheIndian authorities for this proposition are cited with approval inMerwanji Nowroji v. Ashabai (5); and in Mirza Mahomed Aga AliKhan Bahadoor v. the widow of Balmakund and others (6) the PrivyCouncil seem to agree that the proper mode of enforcing' a decreeis that pointed out by the Code of Civil Procedure.
The question which has to be considered is whether by the CeylonCode of Civil Procedure the Legislature has indicated an intentionthat decrees shall be enforced only in the manner indicated by theCode and not by action on the decree.
The only local authority cited to us is the case of Tambi MarikafWappu Marikar v. Nainama Natchiya (7), where Grenier J. held,
(1883) I. L. R. 8 Bom. 1. (4) Sir W. Blackstone's Reports, vol. 1, p. 60C
13 M. <t W. 633.(5) (1883) I. L. R. 8 Bom. 1.
<3) L. R. 6 Q. B. 140.(6) (1876) 26 W. R. 82.
(7) (1904) 1 Bal. 106.
1906.
June 12.
Las obi-138A.C.J.
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1*06. in circumstances resembling those of the present ease, that an action<Jwtel2. might be brought on the decree. But there is nothing in the reporti,tmi.T.iw to show that the Indian cases were brought to the notice of theA.O.J. learned Judge.
Section 217 of the Civil Procedure Code, after dividing decree*into several classes, proceeds as follows: “ And the method of
procedure to be followed, when necessary, bythe decree-
holder on judgment-creditor is that which is next hereinafterspecified according to each of the above distinguishing heads. ”The Code, in the following sections, then sets out the means by whichdecree-holders may enforce decrees according to their classification.
The language of this section, I think, indicates an intention thatthe methods of procedure which are subsequently enumerated areintended to be exhaustive, and that recourse to other remedies is-not open to the decree-holder. Section 337 sets out the conditionssubject to which execution may be reissued, namely, that the Courtis satisfied that on the last preceding application due diligence wasused to procure complete satisfaction or that execution was stayedat the request of the judgment-debtor. These conditions do notappear in the corresponding section 230 of the Indian Code. Thesection further prescribes a time limit beyond which execution willnot be allowed. This follows the lines of the Indian Code.
The object of the stringent provision 337 is obviously to preventjudgment-debtors from being unnecessarily harassed by legal pro-ceedings. This purpose would be wholly defeated if it were opento a decree-holder, after his application to reissue execution hadbeen disallowed under section 337, to institute a fresh action uponthe decree and embark again upon the course of worrying his debtor.
I think that the intention is expressed in our Code, at least asclearly as in the Indian Code, that decree-holders shall be restrictedto the very ample means which' the Code provides for the enforce-ment of their decrees. I would affirm the judgment of the DistrictJudge, but in the circumstances of the case I would allow the decree-holder to renew his application for execution.
Wendt J.—
The right to bring an action upon a judgment is recognized byour Common Law, and the question is whether that right has beentaken away by the Civil Procedure Code. No case has. been citedto us in which an action founded upon a judgment has been held,since the enactment of the. Code, to be maintainable. The case ofWeerawagoe v. Fernando (1) was an action upon the assignment of adecree, and was brought in consequence of the Court s refusal to
(1) (1893) 2 C.L.R. 207.
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substitute the assignee upon the record of .the original action in theroom of the assignor. In India it has been held that in consequenceof the provisions of their Procedure Code, no new action is main-tainable, and I am of opinion that similarly there are provisionsin our Code which indicate that, in the case of a decree enforceableby due execution under that Code, no new action in competent.The whole policy of our Code is that once a cause of action has beenmade the subject of a claim in Court, that claim must finally beadjudicated upon in that proceeding, unless special leave be givento withdraw; and similarly, when once a decree has been obtainedit must be promptly followed up with a view to satisfaction beingobtained by execution in the same proceeding. Section 217, afterclassifying decrees under several heads, enacts that “ the methodof procedure to be followed, when necessary, by the person partyto the action in whose favour the decree or order is made, in orderto enforce satisfaction or execution of his decree in each case res-pectively by the person party to the action against whom the decreeis made, is that which is next hereinafter specified according .to theabove distinguishing heads.” Then follow detailed directions forexecution of (head A) “ Decrees to pay money,” and section 218enumerates the powers of the decree-holder, viz., to seize and tosell or realizeein money by the hands of the Fiscal, except as inthat section excepted, all saleable property of the judgment-debtor;and (see 223) the Fiscal must be put in motion by application forexecution of the decree to. the Court which made the decree. Thereis no section which could be read as recognizing the possibility ofan action on a judgment, and I have come to the conclusion thatthe Legislature intended to prevent such a thing.
Besides holding that no action lay, the learned District Judgehas also held that the refusal of further execution in the originalproceedings operated as res judicata against plaintiff. But thatrefusal was made ex parte and on the ground that plaintiff had notshown that- he had, after the previous issue of execution, exerciseddue diligence to obtain complete satisfaction. I think the orderwas not final in its nature, and looking to the merits so far as theyhave been disclosed in the record, I consider it only fair that plaintiffshould have the right to renew his application for execution.
I therefore concur in the order proposed by my Lord.
1908.June 11
Lasceuuk.
A.CJ.