142-NLR-NLR-V-39-SAIBO-v.-MOHAMADU.pdf
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ABRAHAMS C.J.—Saibo v. Mohamadu.
1937Present: Abrahams C.J.
SAIBO 13. MOHAMADU.96—C. R. Gampola, 1,592.
Writ of execution—Application for writ before taking copy of decree—Recti-fication of omission—Writ not void—Seizure of property without demandof payment from the defendant—Civil Procedure Code, s. 226.
Where at the time an application for writ was made no copy of thedecree had been taken but the omission was rectified before the issueof the writ.
Held, that the writ was not void.
Seizure of property under a writ is not bad merely because the Fiscalhad failed to comply with section 226 of the Civil Procedure Code inthat he made no demand upon the defendant for payment of the amountdue.
De Silva v. Wijesekere (36 N. L. R. 287), and Hadjiar v. Kuddoos(37 N. L. R. 376) distinguished.
A l'PEAL from a judgment of the Commissioner of Requests, Gampola.
Cyril E. S. Perera (with him Dodwell Gunawardene), for defendant;appellant.
E. F. N. Gratiaen, for plaintiff, respondent.
Cur. adu. vult.
December 2, 1937. ^Abrahams C.J.—
This is an appeal against an order of the Court of Requests, Gampola,dismissing an application by the defendant that a writ of execution issuedby that Court should be recalled and that the goods seized under thatwrit should be released. The facts are that the plaintiff in the action
ABRAHAMS C.J.—Saibo v. Mohamadu.
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obtained a decree against the defendant for the sum of Rs. 300 with legalinterest and costs. He applied for a writ of execution on February 7,1935, the application was allowed and the writ was issued on the 15th ofthat month. The sort of delays that is not unusual in this countryapparently followed the issue of the writ. What these were it is notnecessary to inquire, and on February 7, 1936, another application wasmade for the “ reissue of writ ”. This was allowed. On July 9 of thesame year another application was made for a “ reissue of writ ”, and thisalso was allowed. It has been argued for the defendant that the writthat was issued on February 15, 1935, was bad because at the time thatthe application was made no copy of the decree had been taken as requiredby Schedule B., Part II., of the Stamp Ordinance, No. 22 of 1909. Thatprovision reads as follows : —
“ No party shall be allowed to take any proceedings on or by virtueof any decree or judgment without first taking a copy thereof ”.
It is admitted that at the time the application was made no copy of thedecree had been taken, but this omission was rectified at the time that thewrit of execution was issued and it is therefore argued on behalf of theplaintiff that the grant of the application by the Court of Requests is, atthe most, an irregularity, and that the writ itself ought not therefore tobe pronounced void. There is no doubt that the purpose of requiring acopy of the decree to be taken before proceedings were taken on anydecree or judgment was to protect the revenue. In support'of his argumentCounsel for the defendant cites the case of de Silva v. Wijesekera1, whereGarvin S.P.J. was of the opinion that an application for execution of adecree was manifestly a proceeding taken on or by virtue of the decreeand that the Legislature in enacting the relevant provision in Schedule B.,Parc 21., of the Stamp Ordinance, did so in order to prevent evasion ofstamp duty by the simple expedient of not taking out copies of the decree.The facts in that case were different from the facts in this case. There,judgment was entered in the case on August 21 at 3.55 p.m. and at4.20 p.m. an application was filed on behalf of the plaintiff for executionof the decree. That application, which was made ex parte, was allowed.On the very next day after that on which judgment was entered petitionerfiled a petition of appeal and filed also a motion by which he sought tohave the order allowing the writ set aside. Notice of the motion was issued.The matter was heard on September 3, 1934, and the petitioner’s motiondisallowed. On appeal, however, the order was set aside and the writwas recalled. It will be observed therefore that an appeal was takenagainst the order of the Cpurt allowing the application for the executionof the writ before the decree had been entered.
The question then is, does this judgment preclude me from now holdingthat the writ in this case was quite valid because, at the date of issue acopy of the decree had been taken ? I am by no means sure that' I amso precluded because despite the fact that the application was improperlyallowed the mischievous results which the above-referred to provision ofthe Stamp Ordinance was designed to prevent did not follow, and theirregularity permitted by the Court might be said to be the baresttechnicality and it would be unjust to hold the writ invalidated.
» 36 N. L. R. 2X7.
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ABRAHAMS C.J.—Saibo v. Mohamadu.
I am, however, excused from coming to any definite conclusion on theforegoing question because it appears that the application for a writ onFebruary 7, and a similar application on July 9, 1936, were quite in orderas a copy of the decree had been taken long before. Counsel for thedefendant argues that the writ following on the application on theserespective occasions was the same writ, as each application applied for“ reissue of writ The mere use however of the word “ reissue ” doesnot prevent the writ being an entirely new writ if it is so in fact, for oneach occasion the order of the Commissioner of Requests was that theapplication should be allowed on fresh stamps being fixed, and thereturnable date was assigned. How can it then be said that this was thesame writ merely because the same piece of paper was used, presumablyfor convenience sake, which, I understand, is frequently the practice inthe Court of Requests. In Andris Appu v. Kolande Asari *, Ennis J.held that there was no objection to the use of the term “ reissue ” todescribe a second or subsequent writ, but it appears to me that the matteris too obvious to require authority.
The defendant finally contends that the seizure was bad because theFiscal failed to comply with section 226 of the Civil Procedure Code inthat he made no demand upon the defendant for payment of the amount.In support of this contention the case of Hadjiar et al. v. Kuddoos et al.~was cited. In that case it was held by Koch and Soertsz JJ. that afailure of the Fiscal to perform this duty invalidated the sale under thewrit, Koch J. observing that the necessity for the demand itself went tothe root of the interests of the judgment-debtor and that he surely oughtto be given an opportunity of paying and discharging the writ, whichcould only happen if he were informed of the issue of the writ. But itseems to me that that case is no authority for saying that the seizure wasinvalid when no demand was made if the defendant was aware of theseizure. How can he say that he has been given no opportunity ofpaying the amount of the judjfrfient debt ? He has only to pay it now.This defendant cannot claim the benefit of section 226, when he is notinjured by the mere non-compliance with it. This is not even a questionof his crying out before he is hurt ; he cannot even be hurt.
I am of opinion that the order of the Commissioner of Requests is right.In making that order he expressed himself very strongly in regard to theevasiveness of the defendant. His language was thoroughly justified.The defendant has deliberately kept the plaintiff out of his money as longas he could do so and now he seeks to find a loophole in the law of civilprocedure through which he can creep. Every now and again, unfortu-nately, the want of foresight or the incautious use of words by theLegislature enables a creditor to be defeated by his debtor. On thisoccasion, however, the debtor has not been able to find any chink in thelaw small enough to enable him to wriggle through and elude his creditor’sgrasp. The appeal is dismissed with costs.
Appeal dismissed.
1 -IP .V. L. R. 82-5.
1 37 N.L.R.376.