108-NLR-NLR-V-24-RAN-MENIK-ETANA-v.-APPUHAMY.pdf
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Present : Schneider J.
BAN MENIK ETANA v. APPUHAMY.
25—C. B. Chilaw, 18,364.
Civil Procedure Code, *. 849—Application for writ—Payments not certified
—Debtor seeking to show cause—Proper procedure.
When a judgment-creditor moves for writ, . the debtor cannotshow cause against it by seeking to prove that payments, whichhave not been certified, have been made in satisfaction of thedecree. He must first move by petition to certify' such payments.
No payment or adjustment of a decree will be recognized by anyCourt unless it has been certified in the manner provided in section349 of the Civil Procedure Code.
T HE facts appear from the judgment.
J. 8. Jayawardene (with him J. E. M. Obeysekera), for plaintiff,appellant.
Samarakoon, for defendant, respondent.
March 2, 1923. Scbneideb J.—
Decree in this action was entered on January 28, 1918, and anapplication for writ was nade on October. 3, 1922. Plaintiff’sproctor rightly indicated to the Court that more than a year havingelapsed, notice should issue to the defendant of this application.Notice was accordingly issued. Defendant appeared, and sub*roitted that he had cause to show, namely, that he had paid Bs. 60,but held no receipt. The learned Commissioner thereupon made thefollowing order : “ Fix for a cause to be shown on the 1st proximo. ’*It is obvious that he did not consider the procedure prescribed bythe Civil Procedure . Code, emphasized by a Full Court decision ofthis Court. It has been settled law for over twenty years that nopayment or adjustment of a decree will be recognized by any Court,unless it has been certified in the manner provided in section 349.Now, section 349 provides that it is the duty of the decree-holder tohave payment or adjustment certified, and that it is also competentto a judgment-debtor to have this done, and prescribes the proce-dure by which the judgment-debtor may have this done—that itshould be by petition. Then the section proceeds .to say “ No suchpayment or adjustment shall be recognized by any Court unless it has
been certified as aforesaid. ” In the case of Piiche v.Mxthamadu
Khan,1 this Court held that the effect of section 349 was to render
*9S.C. X. 187.
ins.
1988.
SOHIUUIMSB
J.
San MenihStoma v.AppuKamy
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the certificate the sole admissible evidence of the satisfaction of.thedecree. The result therefore of section 849 and of this decision is toplace the matter beyond any doubt or controversy that a certificateis the sole admissible evidence. Mr. Samarakoon, who appearedfor the defendant-respondent, contended that his objection to theissue of the writ was in order, that no obligation lay upon him tohave the payment certified, and that, therefore, it was open to himto follow the procedure which had been followed by him, that is,to call evidence to prove that he had made the payment. It is justthis yery procedure that the Civil Procedure Code intended toshut out. The provisions of the Civil Procedure Code are basedupon a sound principle, that principle being this : so long as there isa decree not prescribed upon a record, the decree-holder is entitledto obtain satisfaction of that decree. If he has permitted time torun beyond certain periods, then the Civil Procedure Code pres-cribes that he shall follow a particular procedure. So long as thatdecree is on the record without a record to the effect that it hadbeen adjusted or satisfied, the Court is therefore not put upon aninquiry as to whether it has been satisfied or adjusted. But forthe protection of the judgment-debtor the Code does require thejudgment-creditor in his application for writ to disclose any adjust-ment or part payment. In the event of the judgment-creditor failingto show that the decree has been satisfied in part, he is entitled toobtain a writ for its satisfaction. Now, the Code not only laysdown that a Court should not take cognizance of any payment oradjustment unless it has been certified, but indicates the procedureby which the judgment-debtor may obtain the certifying of a pay-ment or adjustment.
As this was a matter in the Court of Bequests, although thejudgment-debtor was in default in not pursuing the procedure heshould have pursued, I offered his counsel an opportunity to allowme to overlook this irregularity, and send the case back for inquiry,but he took the high ground in persisting that his procedure wascorrect. I shall therefore deal with the case upon that footing. AsI have already indicated, the procedure he followed is wrong. Itis not authorized by the Code or any law that I know of. I there-fore cast him in the costs of the proceedings which have taken placealready in the Court below and also of this appeal. But as it wouldbe unjust to deprive him of an opportunity of proving payment, Iwill remit the record, in order that he may set himself right by pre-senting a petition as required by the Code. On his failing to do so,the plaintiff will be entitled to have his application for writ allowed.The Commissioner will fix a date within which the application foradjustment should be made.
Sent back.