086-NLR-NLR-V-18-SIDEMBRAM-CHETTY-v.-JAYAWARDENE.pdf
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1914.
Present : Pereira J. and De Sampavo A.J.
SIDEMBBAM OHETTY t>. JAYAWABDENE.
13&-ZD. C. Colombo, 32,019.
Civil ProcedureCode,9.887—" Judgment-debtor "—Requestto stay
execution by one of several judgment-debtors.^
The expresaion “ jadgment^Bhjior" in section 837 of the CivilProcedure Code, in cases in which there are several personsanswering to that description, means all such persons collectively;and, therefore, in any such case a request to stay execution, inorder to bring it within the purview of that section, most be arequest made by all the debtors.
fjpi HE facts are set out in the judgment.
Bawa, K.C., and Samarawickrema, for second defendant, appellant*'Loos, for plaintiff, respondent.
Cur. adv. vult.
December 18, 1.914, Pekeiua J.—
This is an appeal by the second defendant from an order of theDistrict Judge allowing a fourth application for execution madeby the plaintiff. The third application for execution was madeand allowed so far back as March 7, 19111. On the order on thatapplication a writ was taken out by the plaintiff on March 18, 1918.As regards this writ, what the agent of the plaintiff’s firm says inhis affidavit is as follows: “ On March 18, 1913, writ was issuedfor the balance, and the second defendant’s property was seized andadvertised for sale, but the sale was stayed at the first defendant'srequest, and on his promise to pay and settle the plaintiff’s claim.”t)f course, the plaintiff’s agent might have sworn to anythingwithout fear of contradiction by the first defendant, because thefirst defendant is now dead. He died some seven months afterthe alleged request. I should like to pause here to observe that,although the statement in the affidavit referred to is that the.execution of the writ was stayed at the first defendant’s request,in the application for writ made by the plaintiff for the fourthtime it is calmly stated that the sale was stayed *' at the defendant’srequest,” conveying of course the-idea that the sale was stayed atthe request of both the defendants. That is a misleading statement.
Now, under section 337 of the Civil Procedure Code, a second orsubsequent application to execute a decree is not to be allowedexcept under one of two conditions, that is to say, unless the Courtis satisfied that on the last preceding application due diligence was
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used by the creditor to procure complete satisfaction of the decree, 1914.or that execution was stayed by the decree-holder at the request ofjm
the judgment-debtor. In the present case a writ was taken out, a
some property of the second defendant was seized and advertised
for sale, and the sale was stayed -by the plaintiff. These facts Jayawardtnt
standing by themselves show rather a lack of due diligence on the
part of the plaintiff in procuring complete satisfaction of the decree
on the application jon which the writ referred to above was taken
out. The first alternative mentioned above has, therefore, no
application to this case, and the District Judge's finding .that the
decree-holder “ did exercise due diligence f> is altogether beside the
question involved in this case. The plaintiff has not relied on the
first alternative mentioned above, but he has sought shelter behind
the second, namely, that the execution was stayed at (he request
of the judgment-debtor. Now, both under section S (23) of the
Interpretation Ordinance, 1901, and in terms of the ordinary
methods of interpretation of Legislative Acts, the expression
“ judgment-debtor ” in section 337 of the Civil Procedure Code,
in oases in■ which there are several persons answering to that
description, means all such pel-sons collectively. Unless, therefore,
in the present case both the debtors requested a stay of execution,
the case is not covered by the second alternative mentioned in
section 337. When A and B were defendants in a case, and when
on a writ issued in it A’s property was seized, and further execution
stayed at the request of A, it was surely far from the intention of
the Legislature that B should be deemed to be bound by that
proceeding. But in the present case the learned District Judge
holds that the second defendant by his conduct ratified the request
of the first defendant. Assuming that the first defendant did
make such a request as that mentioned by the plaintiff's agent in
his affidavit, as to which we have only the plaintiff's agent's word..
and no contradiction, because the only person who would have
been capable of contradicting is dead, and assuming also that that
request amounted to a request to stay execution altogether for the
time being, there is, in my opinion, no evidence worth the name
of conduct on the part of the second defendant that is tantamount
to ratification of the request. I think that the order appealed
from, so far as it affects the appellaut, should be set aside with
costs.
Db Sampayo A.J.—I agree.
Set aside.
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