120-NLR-NLR-V-69-S.-G.-WIJETUNGA-Appellant-and-SINGHAM-BROS.-Co.-Respondent.pdf
SKI SKANDA RAJAH, J.—Wijetunga v. Singham Bros. <5s Co.
646
1964Present: Sri Skanda Rajah, J., and Sirimane, J.S. G. WIJETUNGA, Appellant, and SINGHAM BROS. & Co.,Respondent
S. C. J83/1963—£>. C. Colombo, 21315/S
Kxecution of decree—Application made after one year has elapsed from date of decree—
Procedure—Civil Procedure Code, as. 224, 225, 347.
Where, after one year haB elapsed from the date of a decroe, application forexecution of the decree is made in Form No. 42 in Schedule II of the CivilProcedure Code as proscribed by sections 224 and 223 of the Code, theapplication is equivalent to the “ petition ” referred to in section 347.Therefore, a petition need not be attached to the application.
It is sufficient compliance to give notice of the application to the judgment-debtor. A copy of the petition need not be served on him.
A.PPEAL from a judgment of the District Court, Colombo.
A. C. Jayasinghe, with M.T. M. Sivardeen, for the defendant-appellant.
No appearance for the plaintiff-respondent.
Cur. adv. vull.
October 23, 1964. Ski Skanda Rajah, J.—
We now set down our reasons for the order we made on 16th October,1964, dismissing the appeal.
Application was made on Form No. 42 in Schedule II of the CivilProcedure Code as prescribed by sections 224 and 225 of the Code. Therewas no petition attached to it though it was made after the lapse ofone year after the decree. The judgment-debtor-appellant’s objectioniB that he was served with only a notice regarding this applicationand not in addition with a copy of the petition as required by section347 of the Code.
Mr. Sivardeen cites, in support of this contention, the followingcases
de Silva v. Vpasaka Appu, (1919) 6 C. W. R. 227
Perera v. Novishamy, (1927) 29 N. L. R. 242
Fernando v. Thambirajah, (1945) 46 N. L. R. 61
Rodrigo v. Weerakoon, (1957) 61 N. L. R. 150, and
Ratioatte v. Abdul Azeez, (1160) 62 N. L. R. 400.
Also, he very properly brought to our notice the following cases whichtake a view to the contrary:—
Muttiah Chetty v. Meera Lebbe Marikar, (1892) 1 S. C. R. 244
Nanayakkara v. Sulaiman, (1926) 28 N. L. R. 314
646
SKI SKANDA KAJAH, J.—Wijetunga v. Singham Bros, is Co.
Wijewardene v. Raymond, [1937) 39 N. L. R. 179, and
Silva v. Kavanihamy, (1948) 50 N. L. R. 52
These cases will now be examined in their chronological order.
In Muttiah Chetty v. Meera Lebbe Marikar it was pointed out that“ the ‘ petition ’ referred to in section 347 obviously embraces the writtenapplication required by section 224 ”, per Withers, J. at 246. Thesewords of Withers, J. reflect our view regarding the word ‘ petition ’ insection 347.
In de Silva v. Upasaka Appu the judgment-debtor was not made aparty respondent to the application. Nor was notice of the applicationfor writ given to him. De Sampayo, J., at 228, said, “ Such an irre-gularity is substantial, especially in a case like this where the amountdue was quite within the competence of the execution-debtor to paywithout any writ ”, and set aside the order appealed from.
In Nanayakkara v. Sulaiman objection was taken by a claimant toproperty seized to the regularity of the proceedings on the ground thatno notice of the application for writ had been given to the judgment-debtor in terms of section 347. Dalton, J., quoted from Blssessv.r hallSahoo v. Maharajah Luchmessur Singh, 6 Indian Appeals 233 (P. C.).“ in execution proceedings, the Court will look at the substance of thetransaction, and will not be disposed to set aside an execution uponmerely technical grounds, when the execution has been found to besubstantially right We would respectfully subscribe to the viewcontained in this quotation.
Perera v. Novishamy dealt with the re-issue of writ for the third time—a matter falling within the scope of section 337 of the Code—and theCourt directed notice to issue on the judgment-debtor. The appli-cation was itself in Form No. 42. It was held that the application shouldhave been made by petition and a copy of such petition should have beenserved on the judgment-debtor. M-utliah Chetty and Nanayakkarado not appear to have been referred to at all.
In Wijewardene v. Raymond it was held that an application for writunder section 347 need not be by petition and that it is sufficientcompliance to give notice of the application for writ to the judgment-debtor in order to afford him an opportunity to be heard against theissue of writ. Soertsz, J., whose experience even in the original courtswas considerable, expressed his agreement with the view taken in Muttiah• Chetty and his disagreement with Perera v. Novishamy. At 181 hesaid, “ I have examined this question at some length as it is one thatarises with some frequency and not because the present case is one ofmerit. In my opinion, the attitude of the appellant is a vexatious one.He says I have no cause to show except that you have not crossed yourt’8 and dotted your i’s. ” Also he referred to the observation ofDalton, J., in Nanayakkara.
Sinniahpillai v. Abdul Coder
547
In Fernando v. Thambirajah failure to apply by petition and to givenotice of application were held to render the execution proceedingsvoid and of no effect. This case too made no reference to Muttiah■Chelty and Nanayakkara.
In Silva v. Kavanihamy the provision as to service of notice in section347 was held to be merely directive and that the failure to serve the noticewas only an irregularity. With respect, we find ourselves unable tosubscribe to this view.
Rodrigo v. Weerakoon too did not consider those cases but followedde Silva v. Upasaka Appu. In that case application was not made inForm No. 42.
The question for decision in Ratwatte v. Abdul Azeez was whether theDistrict Judge was right in allowing the subsequent application for theexecution of the decree under section 337 of the Code. It was, therefore,unnecessary to consider section 347. Also, neither Basnayake, C.J.,nor H. N. G. Fernando, J., examined in his judgment Muttiah Chetty,Nanayakkara and Wijewardene.
To sumarise our view :—
. I. The application in Form No. 42 is equivalent to the * petition ’referred to in section 347. Therefore, a petition need notbe attached to the application. (Muttiah Chelty ; Wijewardene).
It is sufficient compliance to give notice of the application to thejudgment-debtor. A copy of the petition need not be servedon him.
In this case the appellant had the requisite notice. Therefore, he■cannot complain that he was denied the opportunity of showing cause.He was not prejudiced in any manner by the failure to annex a copy ofthe petition to the notice.
Sirimane, J.—I agree.
Appeal dismissed.