073-NLR-NLR-V-62-RATWATTE-Appellant-and-ABDUL-AZEEZ-Respondent.pdf
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Ratwatte v. Abdul Azeez
1960 Present :Basnayake, C.J., and H. N. G. Fernando, J.RATWATTE, Appellant, and ABDUL AZEEZ, Respondent
S. C. 8—D. G. Kandy, 4963JMS
Civil Procedure Code—Subsequent application for execution of decree—Conditionsnecessary for granting it—Application for writ more than one year after decree—Effect of failure to serve notice on debtor—Sections 224, 337, 347.
Where a subsequent application in terms of section 337 of the CivilProcedure Code is made for the execution of a decree, the Court has no power to£rant the application unless it is satisfied'that on the last preceding applicationdue diligence was used to procure complete satisfaction of the decree or thatexecution was stayed by the decree-holder at the request of the judgment-debtor.
Quaere, whether, where one year has elapsed from date of decree, non-compli-ance with the requirement of section 347 of the Civil Procedure Code that acopy of the application for execution should be served on the judgment-debtorcan invalidate an execution sale which has already taken place.
Appeal from a judgment of the District Court, Kandy.
S. G. Ratwatte, for Defendant-Appellant.
M. T. M. Sivardeen, for Plaintjff-Respondent.
Cur. adv. wit.
'(1942) 43 N. L. JR. 436.
2 (1958) 60 N. L. R.381.
BASNAYAKE, C.J.—Ratwatle v. Abdul Azeez
401
June 17, 1960. Basnatake, C.J.—
The question that arises for decision on this appeal is whether thelearned District Judge was right in allowing the subsequent application,for execution of the deoree.
The material facts shortly are as follows :—On 22nd March 1956 the.plaintiff-respondent obtained judgment in a sum of Rs. 25,000 with legalinterest thereon and costs against the defendant-appellant. On 24thApril 1956 the plaintiff made his application for the execution of thedecree as required by section 224 of the Civil Procedure Code. Theapplication was allowed on 30th April 1956 and the writ was issued on4th May 1956. It would appear that the Piscal returned the writ un-executed with the following remark : “ That the defendant could not befound to demand payment and that the plaintiff too did not take anysteps to point out any properties for seizure and sale. ” On 9th July1958 a second application for the execution of the decree was made inthe prescribed manner. The application made in the form required bysection 224 stated : ** We pray that the sum of Rs. 25,000 with legalinterest and costs of suit may be realised by reissue of writ againstdefendant’s properties. ** The Judge ordered that an affidavit be filedas this was not the first application for execution of the decree and hepresumably desired to satisfy himself that the conditions precedent tothe grant of a subsequent application for execution prescribed in section •337 of the Civil Procedure Code existed. On 1st August 195S an affidavitdated 28th July 1958 was filed. In.that affidavit the plaintiff stated:
“ 2. I obtained judgment in this case against the defendantfor the recovery of the sum of Rs. 25,000 with legal interest thereonfrom 5.10.55 till payment in full and costs of suit.
“3. As the defendant failed to pay the amount due to me as afore-said I issued writ and instructed the Piscal, Central Province, to.executethe writ.
“ 4. Thereafter the defendant having come to know the said factcame to me and asked me not to take further steps but would pay the-amount due and asked for time to pay.
“ 5. I fully believing the defendant did not take further steps andthe writ has been returned to court after lapse of time.
“ 6. The defendant as promised failed and neglected to pay theamount due and I am therefore desirous of taking further steps in thiscase to enable me to recover the amount due.
“ 7. I would have taken steps early if not for the facts mentioned’in the 4th paragraph hereof. ”
Upon this affidavit the court made the order.: f< Reissue writ now ”and on 11th August 1958 the writ was. reissued. Before it was executed,on 30th September 1958 the defendant filed a petition in which he prayed.
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3ASNAYAKE, C.J.—Ratwatte v. Abdul Azeez
that the Fiscal, Central Province, Kandy, be directed to return the writunexecuted and-that the decree entered be vacated and that the case befixed for trial. After hearing counsel for the respective parties on 6th^January 1969 the learned Judge dismissed the defendant’s applicationto have the writ returned unexecuted holding that his order to reissue ■writ was valid and that the judgment-creditor was entitled to executethe decree. He rejected the contention of counsel that the order to re-issue writ should not have been made unless notice had been served on thejudgment-debtor. On the authority of Silva v. Kavanihamy 1 he heldthat the failure to serve notice did not render his order to reissue writinvalid.
It is common ground that the application for execution under considera-.tion was not the first application but a subsequent one. But both counsel-and Judge appear to have lost sight of that fact. Though the considera-tions that govern a first application for execution and a subsequentapplication are not the same they seem to have overlooked the specialprovisions of section 337 and focussed their attention on section 347 ofthe Code. In the result the argument appears to have been confinedto the question whether the failure of the court to cause the petition ofapplication for execution to be served on the judgment-debtor was fatalto the application.
The learned Judge was bound by the provisions of section 337 and hehad no power to grant a subsequent application to execute the same decreeunless he was satisfied that on the last preceding application due diligencewas used to procure complete satisfaction of the decree or that executionwas stayed by the decree-holder at the request of the judgment-debtor.He has not found that either of these matters was established by thejudgment-creditor to his satisfaction. His order is therefore bad andmust be set aside as one made in contravention of section 337.
I shall next consider the effect of non-compliance by the court with therequirement of section 347 that it should cause to be served on the judg-ment-debtor thg petition of application for execution. The requirementthat the petition should be served on the judgment-debtor is designedto give him an opportunity of being heard before a writ of execution isgranted in those cases mentioned in tnat section. The omission to complywith such a valuable safeguard deprives the judgment-debtor of anopportunity of being heard before an order against him is made in favourof a judgment-creditor who has delayed to execute his decree. Such astatutory requirement designed to give statutory effect to the rules ofnatural Justice must be construed as imperative and not directory eventhough the duty is not one imposed on the petitioner. An examinationof the section reveals that the Legislature intended to impose animperative duty on the court in cases where no respondent was namedin the petition. The use of the word “ shall ” coupled with the words ofthe proviso “ no such service shall be necessary if the application be madewithin one year ” compel me to that, conclusion. Apart from the
1 (1948) 5G N. L. R. 52.
EC. IN’. G. FERNANDO, J.—Ratwatte v. Abdul Azeez
403
requirements of natural Justice and the language of tlie section there is athird reason why the proviso must be read as imperative. It is a well-established rule of interpretation of statutes that enactments regulatingthe procedure in the courts are to be construed as imperative and notmerely directory. A denial to the judgment-debtor of the opportunity ofbeing heard must necessarily be fatal to the application of the petitioner.
I find* myself unable to agree with the view taken in Silva v. Kavani-hamy {supra). In that case the fact that non-compliance with thesection results in the denial of an opportunity of being heard to thejudgment-debtor does not appear to have received the consideration thatit deserves. I am in accord with the view taken by this court in Fernandov. Thambiraja 1 which follows a number of previous decisions of thiscourt and which I think is the correct view. It finds support in the•decisions of the Privy Council in Malkarjun Bin Shidramappa Pasare v.Narhari Bin Shivappa 2 and Ragunath Das v. Sundar Das Khelri 3, andof the Madras Pull Bench case of Rajagopala Aiyar v. Ramanujachariyar<$s another 4 on the corresponding section of the Indian Civil ProcedureCode (see s. 248 old Code, and Order 21 rule 22, new Code).
I am therefore of opinion that on the application of the true principle■of interpretation the requirement in section 347 that a copy of the petitionshould be served on the judgment-debtor is imperative and that a writissued without that'requirement being observed is bad as being contraryto the statute.
The appeal is allowed with costs both here and below and the order ofthe learned District Judge is set aside.
JET. N. G. Pebkando, J.—
I agree that the application for execution made on 9th July 1958 wasone to which Section 337 of the Code applied ; such an application cannotbe granted unless the Court is satisfied that on the last preceding applica-tion “due diligence” was used to procure complete satisfaction of the<Iecree, or that execution was stayed at the request of the judgment-debtor. It was presumably for this reason that the learned DistrictJudge ordered an affidavit to be filed. The affidavit of the plaintiff-did contain allegations of fact, which, if true, may have sufficed to satisfythe requirements of Section 337. But even if one were to assume, fromthe fact that the Judge ordered that the writ should re-issue, that theJudge accepted the truth of the allegations in the plaintiff’s affidavit,he should not have done so without affording to the judgment-debtoran opportunity to challenge those allegations. There can be instanceswhere an application falling within the scope of Section 337 may properlybe grantd ex parte ; in Perera v. Novishamy 5 the Fiscal’s return to thelast preceding issue of writ was “ Sale adjourned at the request of the 1
1 {1945) 46 N. L. R. 81.3 {1914) A. J. R. (P>. C.) 129.
* 27 I. A. 216 at 226.4 {1924) A. 1. R. Madras 431 at 435. '
6 {1927) 29 N. L. R. 242.
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H. N. G-. FERNANDO, J.—Ratwatte v. Abdul Azeez
plaintiff who has allowed the defendant two months’ time to settle ”,and on this material Schneider, J., was satisfied that the earlier writ was-returned unexecuted for no default on the part of the decree-holder. Butexcept in those cases where the record “ speaks ”, a Court cannot bejudicially satisfied, merely upon averments in the affidavit of the decree-holder, of the truth of the facts deposed to by him. I would hold, there-fore, that the order for the re-issue of the writ was illegal for the reasonthat the Court, on the material before it, was not or else could not have-been duly satisfied as to either of the two conditions precedent whichare specified in Section 337.
As this appeal must succeed for the reason just mentioned, it is not inmy opinion essential to pronounce upon the further ground relied uponby the appellant, namely that because of the lapse of the specified periodof time, Section 347 imperatively required notice of the application forexecution to be served on the judgment-debtor. The opinion to that-effect expressed in Fernando v. Thambiraja 1 was one of a single judge,and was reconsidered in the later case of Silva v. Kavanihamy 2 by abench of two judges. Canekeratne, J., there thought that in the earlierappeal the Court may not have had the benefit “ of a full and clear argu-ment with reference to the earlier cases ”, and said also that the contraryview (i.e. that Section 347 was not imperative) had stood unchallengedfor a period of little over fifty years. He sought to distinguish one at.least of the Indian cases cited by Jayetileke, J., on the ground that itdealt, not with a failure to issue notice on a judgment-deb tor, but withthe failure to notice the assignee of his insolvent estate. If invited todisapprove the more recent judgment, particularly one pronounced byCanekeratne, J., on a question of Civil Procedure, I would require thebenefit (which I have not had at the argument of the present appeal),,of a searching examination of both those decisions and of the precedentson which they depend.
Por present purposes, it suffices to note that the decision in Silva v-Kavanihamy (supra) does not prevent us from ordering that the writissued in this case be returned unexecuted. In Silva v. Kavanihamy,the proceedings had reached a stage where a sale in execution had in facttaken place, and in the circumstances of the case the Court declined tohold that the sale was void on the ground that a copy of the applicationfor execution had not been served on the judgment-debtor. But Caneke-ratne, J.’s opinion (at page 55), that “ the non-issue of a notice to a,judgment-debtor is a material irregularity in proceedings which areanterior to the publishing or conduct of the sale ”, would appear to indicatethat in his view, the writ should be recalled if, before the publishing of asale, attention is drawn to the failure to issue to the judgment-debtor acopy of the application for execution. That opinion, which I wouldrespectfully adopt, is decisive in favour of the appellant in this case,and the further question whether Silva v. Kavanihamy was rightlydecided does not need to be considered for- the purposes of this appeal.
1 (1945) 46 N. L. R. 81.
* (1948) 50 N. L. R. 52.
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K. N. G. FERNANDO, .T.—<te Silva v. Ajteez
he appellant in lxis petition to the District Court has asked, that thedecree entered against him be vacated and that tne case be fixed fortrial; that part of his prayer has not been pressed and cannot be granted.But he is entitled to an order that the writ issued on 11th August 1958be recalled unexecuted, and also to the costs of his application in theDistrict Court and to the costs of this appeal.
Appeal allowed.