Perera v. Martin
1958Present : Gunasekara, J., and Sarisoni, J.
S. P. J. PERERA, Appellant, and H. ilARTINand another, RespondentsS. C. 537—D. C. Gampaha, 4,135fP '
Partition action—Order for coats—Recoverability of costs of execution—Civil ProcedureCode, ss. 20S, 200—Partition Act Xo. 16 of 1051, ss. 10 (-3), IS (3) (g), 65, 77, 70.
In an action instituted under tlio Partition Act, Xo. 1 6 of 1951, it is competentfor tho Court to order that the costs of execution of an order for tho payment ofcosts inaelo in tlvo final decree should bo recovered from tho judgment-debtor.
. Tho provisions of sections 203 and 209 of tho Civil Procedure Code relatingto tho recovery of costs of execution aro applicable to proceedings under thoPartition Act..
GTJNASEKARA, J.—Perera v. Martin
>^^-PPEALi from a judgment of the District Court, Gampaha.–
Sir Ixilita Rajapakse, Q.C., with H. Rodrigo and T C. Cunalilaka,for the plaintiff-appellant.•
No appearance for the respondents.
Cur. adv. vuli.
June 18, 195S. Guxasekara, J.—
This appeal arises out of an action under the Partition Act, No. 16 of1951, and the question for decision is whether a district court has powerto order that the costs of execution of an order for the payment of costsmade in such an action should be recoverd from the execution-debtor.
The final decree, which was entered on the 23rd March 1956, orderedsome of the'defendants to pay to the plaintiff, who is the appellant,Rs. 52-50 as the costs of a contest and ordered “ that the parties do payto the plaintiff his other costs, as contemplated by the Partition Act,No. 16 of 1951, pro rata According to a scheme of distribution thatwas approved by the learned district judge on the 6th August 1956, aa sum of Rs. S5-17 was payable by the 14th defendant, who is the 1strespondent, and a sum of Rs. 10-01 by the 15th defendant-, who is the 2ndrespondent, as “pro rata costs”. By an application dated the 21stMay 1957, and minuted in the record on the 25th May, the appellant’sproctor asked for the issue of a writ, after notice to the respondents, forthe recovery of these sums as well as the costs of execution, whichhe estimated at Rs. 77-50 and which he asked should be taxed. On the27th May 1957 the learned judge minuted an order directing the issueof a notice on the respondents “ in respect of recovery of pro rata costsonly ” and observing that there was “ no provision in the new PartitionAct (No. 16 of 1951) to claim prospective costs ”. The appellant’s proctorthereupon asked that he be granted an opportunity of supporting hisapplication and that the order made on the 27th May be vacated and anorder made in terms of his application. The learned judge heard himin support ofthe application and made order on the 25th September 1957holding that costs of execution “ cannot be taxed and are not recoverableunder the provisions of the Partition Act ”, The appellant seeks tohave this order set aside and an order made vacating the order of the27th May 1957 and directing the issue of a notice on the respondents asasked for in his application dated the 21st May 1957.
It is enacted by section 65 of the Partition Act that
“ Costs shall ordinarily be borne by the person who incurs the costsexcept in cases where it is expressly provided by this Act that any costsor proportion of costs shall be borne, or may.be ordered by the courtto be borne, by some other person. ”
GUXASEKAKA, J.—rcrcra v. Marlin
Express provisions such as are contemplated in the except ion are contained,in other sections of the Act, but they all relate to costs of the action andnot to costs of execution. This is the ground of tho district judge’sview that costs of execution cannot be recovered.
According to this view, anj' costs that have not been paid by a party ■who lias been ordered to pay them may be recovered by the person towhom they are payable only if the latter is willing to recover them atlus own expense, even though that expense may exceed the amountsought to be recovered. This would bo the position of a party to anaction in whose favour an order for costs has been made ; or of a surveyorin whose favour an order has been made under section 10 (3) of the Actfor the recovery of a sum duo to him as costs of a survey ; or of tho Crownwhere an order has been made under section IS (3) (b) for the recoveryof costs due to the Surveyor-General.
Such a view of the law, which can result in manifest injustice, is nobreached if the provisions of the Civil Procedure Code relating to thorecovery of costs of execution are applicable to proceedings under thoPartition Act. Section 209 of the Civil Procedure Code empowers a courtto award to a party the costs of any application under the Code, and interms of section 20S costs include the expenses necessarily incurred by aparty in enforcing a decree passed in an action.
It is enacted by section 77 of the Partition Act that the provisions ofthe Civil Procedure Code relating to tho execution of writs shall applyin relation to the execution of writs in a partition action ; and by section79 that
“ In any matter or question of procedure nob provided for in thisAct, the procedure laid down in tho Civil Procedure Code in a likomatter or question shall bo followed by the court, if such procedureis nob inconsistent with the provisions of this Act. ”
The learned district judge holds that “ this js not a matter or questionof procedure but a matter of substantive law ” and that he has “ notgot flic power to make use of the sections of the Civil Procedure Codewhich enact substantive law ”.
With all respect to the learned judge, it seems to me that provisions■which empower a court to order that the cost of enforcing a decree should beborne by the judgment-debtor would be provisions relating to the exe-cution ofwritsand to procedure. I am therefore of opinion that sections7 i and 79 of the Partition Act have the effect of empowering a court toorder the recovery of the costs of execution from the judgment-debtor.,
Tho appeal must be allowed with costs in this court and the courtbelow.
S.assoxi, J.-—I agree.
2'J. N. B 6315 (S/5S)
S. P. J. PERERA, Appellant, and H. MARTIN and another, Respondents
Perera v. Martin