RAMEN CHETTY v. JAYAWARDENE

102-NLR-NLR-V-18-RAMEN-CHETTY-v.-JAYAWARDENE.pdf


I 392 )
IMA
Present: Ennis J. and De Sampayo J.BAMEK CHETTY v. JAYAWABDENE.
118.—D. 0- Colombo, 26,978.
Application for re-issue of writ—Due diligence—Civil Procedure Code,ss. m *nd 887.
A second or subsequent application for execution of a decreeis not barred ’ for want of due diligence by reason of the fact thaton the' previous application the judgment •creditor had not takensteps to ftgftmipft the judgment-debtor under section 2X9 of theCivil Procedure Code.
r
[E facts are set out in the. judgment, of De Sampayo J. as
follows:—
This is an appeal from an order allowing an application for theissue of writ of execution against property, and the ground of appealis that the plaintiff had failed to use due diligence to procure com-plete satisfaction of the decree on the last preceding application,as required by section 337 of the Civil Procedure Code. For tinspurpose the last preceding application was one which was allowed
( 393 )
on February 11, 1914. Ujftn that application a writ was taken4915.^
out on March 18f 1914, returnable on December 8, 1914; and itBamm
was returned to Gourt on December 9, 1914, with the report thftt Chettyv.the second defendant had failed to pay the amount, thoughdemanded, or to point out any property fbr seizure, and that theplaintiff had not pointed out any property and the Fiscal hadbeen unable to discover any. On December 28, 1914, the DistrictJudge allowed a motion made by the plaintiff for a notice on thesecond defendant to appear in Court to be examined as to hisassetB under section 219 of the Civil Procedure Code. At thisstage the proceedings were delayed by two motions on behalfof the second defendant. One was to discharge the order of.December 28 for the examination of the second defendant, and theother was to certify payment of the decree. Neither of thesemotions succeeded, and ultimately the District Judge allowed theplaintiff’s application for re-issue of writ, and also warrant of arrest,by his order of August 18, 1915, from which this appeal has beentaken.
Bawa, £.0. (with him Do Zoysa), for defendant, appellant.
Drieberg, for plaintiff, respondent.November 12, 1915. Ennis J.—
Cur. ode. vutt.
This is an appeal from an order allowing execution of a decreedated June 12, 1908. A previous application for execution wasmade on December 5, 1913. Writ issued on February 11, 1914, andwas returned on December 9, 1914, with the Fiscal’s report that hewas unable to find any property. On December 23, 1914,the creditor made an application under section 219 of the CivilProcedure Code to examine the debtor as to his assets. Thatapplication, for A number of causes, was suspended, and thepresent application was made on August 18, 1915. It was urgedthat tiie application should have been refused, as there had beena want of due diligence on the earlier application; this is the onlypoint for determination on .the appeal.
Section 837 of the Civil Procedure Code provides that a subse-quent application to execute a decree should not be granted unlessthe Court is satisfied that on the last preceding application duediligence was used to procure complete satisfaction of the decree.
The argument for the appellant was that the last precedingapplication abated on the return of the writ, and that the creditor-respondent had not used , due diligence on that application, as hehad not "applied under section 219 to examine" the debtor while theapplication was si>H pending. A series of cases were cited in supportof the contention, but none of them in my opinion contains anyclear authority for the proposition. In all of them there seems
urn,
Ennx$.J>
.IfemetiChetty v.Jayawardtk
{ 894 )
o •
ht be some confusion between the question of due diligence on thegracious application and due diligence after the previous Application;and not one of them says that' an application under section 219should be made-before theretum of the vrit
® InPerumal Chetty v. Perera 1 Bonser C.J. said: ** St is*
quite clear that the creditor did not use due diligence. He seems tohave rested* satisfied with the abortive sale, and to have made nofurther effort to have his writ executed. Section 219 of the Codeempowers him to summon the debtor, before the Court and havehim orally examined as to his property and his means of satisfyingthe decree; and if the creditor does not exercise the powers whichthe Court gives him he cannot, be said to have used due diligence/9
The Court, however; held .that the writ issued on the first applica-tion for execution was still outstanding. It would seem, therefore,that the first application was still pending when the second applica-tion was made, which alone would be a sufficient reason for notallowing the second application.
In Palaniappa Che tty v. Gomes 8 it appears that an earlier applica-tion for execution of writ against property had been issued, andaccording to the head-note in the case, returned by the Fiscal with& report that the judgment-debtor was not possessed of any property.According to the judgment, however, it appears that when the casefirst* came up on appeal it was found that the Fiscal had not madeany return at all. It was held that it was open to the plaintiff-creditor to have adopted one of two steps, i.e., to have appliedunder section 219 of the Code to examine the debtor as to his pro-perty, or to have applied under section 298 to attach his person,and that having failed to take either of these steps the creditorwas primA facie wanting in due diligence. If the facts were asstated in the judgment, it would seem that in this case, as in AnaPerumal Chetty v. Perera/ the writ issued on the first application. was still outstanding ahd the first application still pending whenthe second application was made. But if, as indicated in thehead-note, a return of the writ had been made by the Fiscal, thenthe case dealt with circumstances showing want of due diligencein applying for o new writ, and not any want of due diligence onthe application for the application would cease to he pending assoon as a complete return to the writ, had been made. It is to beobserved that the finding was that the creditor did not executedue diligence in “ recovering the judgment debt/1 not that therehad been a want of due diligence ** on the earlier application/9
The case of Palaniappa Chetty v. Gomes 3 was followed in Ephraim^v. Silva * without any further consideration of the point.
£
lu Silva y. Alwis 4 the question before the Court was whetherthere had been an unreasonable delay in making the first applicationi 9 Br. 29.* 6 N. L. B, SOI.
s 3 n. l. n.m.«i a. t h. m
( 895 )
for e <eutioD, tuid Wendt .7. observedf referring to tb& provisions of i§t§.sect '.219: “ Such an examination, may be, f<nd under ordinary
ciroiit. .tancfcs is, a means of information whieh a creditor is oblige —rto adt t: but if v‘‘auul fott means he is able to satisfy-the Court ch&tyv.on the point …. T am not prepared to say he ia debarred from JayauMkhim
doing r*o
E' yapiUei #* Uutukeeu 1 was clearly a cage of delqg hi applyinga stec* md time f**? execution, and the cases I have already cited wererefen ?d to I?? support of the contention that there had been a wantof du* diligence in obtaining satisfaction of the decree, rather thana watt of d&r diligence on the previous application. Wood BentonJ. the*e remnrKed Ihatany presumption which might be drawn fromthe at seuce of any application under section 219 was a presumptiononly. »nd might be rebutted.
In jhe present .case there has been no want of due diligence afterthe return of thewrft orr ;fcho earlier application. As soon as theFiscal's return showed that he could find no property of the debtor,an application was promptly made under section 219 to examine .the debtor.
The question whether a failure to make application under section219 or under section 298, before the return of the writ, is pTtrnafacie evidence of want of due diligence on the application, turnson whether the creditor knew or had reason to believe that noproperty of the debtor could he found. Until then no applicationunder section 298 to attach the person of the debtor could, by thsexpress terns of the section, be successful, and it would be equallyunreasonable in my opinion for the creditor to call upon the debtor,and add to the cos*<sv by an application under section 219, untilsatisfied that no property of the debtor could be found which couldbe seized in execution. No presumption from the absence of anapplication under section 219 before the return of the writ wouldnecessarily arise from that fact alone. Whether such a presumptioncan be drawn would turn on the fact in each particular cas%, andthe oases cited do not in my opinion establish the proposition thatthe presumption can be drawn in every case. In the present easethe learned Judge is in my opinion right in saying that untilthe Fiscal made the return the plaintiff-respondent could notknow whether any property had been found or not,' and there isno suggestion in the case that there was any possibility that propertywould not be found. The learned Judge was satisfied from therecord that there was no want of due diligence on the previous applica-tion, or afterwards. I see no reason to think he Was wrong, or thatany presumption which would require evidence in rebuttal could bereagod against the respondent. 1 would dismiss the appeal, withcosts.
: (1907) 10 .V. L. B. m.
( 865 )
19$.Db SAMPAY(f J.—
9ammt [Hie Lordship set out Hie facts, and continued]:—
Ja&award$necontention a# to the absence of due diligence is based on the
fact that either before the issue or during the currency of the writof execution of March 18, 1014, the plaintiff had not taken stepsto have the second defendant examined under section 219 of theCivil Procedure Code. Several decisions of this- Court have beencited on behalf of the second defendant, but I do not think thatany of them supports the contention to its full extent. Thosedecisions have the effect of reading section 210 into* section 887.Now, section 219 is a reproduction of Order 42, Buie 32, framedunder the English Judicature Acts, but there is nothing in theEnglish rules of practice corresponding to section 837 of our Code.The above English rule being independent of any such provision assection 387, I find dt difficult to agree that section 219 must neces-sarily be connected with section 837. I can quite conceive that ajudgment-creditor, who does not take advantage of means of dis-covery in aid of execution, may in particular cases be taken to have,failed to use due diligence to procure complete satisfaction of thedecree. I think the cases cited go no further than that, and cer-tainly do not support the proposition, which is practically main-tained on this appeal, that, whenever a second or subsequentapplication is made for execution of a decree, there is a rigid rulethat on the previous application the judgment-creditor should havetaken steps to examine the judgment-debtor under section 219.As a matter of fact, the argument went even further, for it was con-tended that even on a first application the judgment-creditor shouldshow that he had used due diligence, and that, as that impliedthe examination of .the judgment-debtor for discovery of assets,section 219 must be brought into play before any application forwrit is made. This view was at one time entertained, as appears fromSilva u. Alwis 1 and Ephraims v. Silva,1 but these decisions have beenover-ruled by the Full Court in Silva v. Singho. 3 4 The main reliance,however, is. placed on the argument that in connection with theexecution of the first writ, and before its return to Court, by theFiscal, it was imperative for the plaintiff to have exercised his rightunder section 219. There is no express provision of the law to thateffect, and I am not inclined to impose on execution-creditors theobservance .of such a condition precedent by implication. Section219 is, after all, intended to facilitate the realization of claims, and notto create any obstruction. I think none of the decided cases meantto put the , matter higher than it was in Eliyapittai v. Murukesu*where it was .said that the failure to examine the debtor under section219 was only presumptive evidence of .the absence of due diligence.
i 1 1 C. B. 102.1 6 N. L. R. 301.
3{MY) 10 N. L. R. $12.
411907) 10 N. L. R. 249.
( 807 )
The question, then, is alwayg one of fact. There may Be due dili-^enee without any examination of the debtor, or there may be absenceof due diligence even with such examination, and in determiningthe question all the circumstances should be tafaei^into consideration.In tiie present case the proceedings show that the plaintiff allthroughout exercised a great deal of forbearance, and the ^periodof nine months, during which the writ was allowed to remain inthe hands of the Fiscal, is to my mind an indication of the samespirit, rather than any evidence of want of due diligence. In my'opinion the learned District Judge is right in holding that untilthe Fiscal made his return to the writ the plaintiff cannot reasonably■ be expected to have taken steps to examine the second defendantunder section 219. Nor is there any substance in this appeal,because the second defendant, beyond depending on the technicalobjection, does not suggest that his examination would have effectedany useful purpose. I think the appeal fails, and should be dismissedwith costs.
Appeal dismissed.
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