060-NLR-NLR-V-10-SILVA-et-al.-v.-SINGHO-et-al.pdf
( 312 )
1907.
September
[Full Bench.]
3.
Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Middleton, and 'Mr. Justice. Wood Benton.
SILVA et ah v. SINGHO et al.
D. GMaiara, 3,009.
Writ, application for—Delayof morethan ayear betweendateof decree
and date of application for, writ—Explanation of delay—Proof of
amount due—Due diligence—Civil ProcedureCode, ss.337 and
347.
Where more than ayear haselapsedbetween thedateof decree
and the date of application for writ, the judgment-creditor is not■ required, as a condition precedent to such application being allowed,to prove the exerciseof due diligence,or to explainthedelay in
making such application.
The judgment-creditor need only show that the decree has notbeen satisfied.
Chetlappa Cketty v.Kandyah*.and Silva v. Alwis*over-ruled on
this point.
/ ■*
A
PPEAL from an order of the District Judge (G. F. Plant, Esq.) ■refusing to allow execution on the ground that the judgment-
creditors had failed to explain the delay in applying for writ. The •facts sufficiently appear in the judgment of the Chief Justice.
Sampayo, K.G. (Walter Pereira, K.C., S.-G., Bawa, and Prim with«him), for the plaintiffs, appellants.
H. A. Jayewardene (H. J. G. Pereira and B. L. Pereira with'-him),for the defendants, respondents.
Gur. adv. vult.
« 1
1 (1906) 2 Bolasingham 61.3 (1907) 1 'App. Court Reports 103.
( 313 )
3rd September, 1907. Hutchinson C.J.—1807.
September 3-
The question in this case is whether an execution-creditor who
has not applied for a writ of execution until more than one yearafter the date of his judgment is entitled to the writ upon proof thatthe judgment debt is still owing, or whether he is barred by thedelay unless he gives some excuse for it. It depends on the truemeaning of section 347 of the Civil Procedure Code. The action wason a mortgage bond. The judgment was given on the 25th March.
1908, and ordered that the defendant should pay Bs. 2,945 andinterest and costs within seven days, and that' in default themortgage property should be sold. No application was made forexecution until the 10th July, 1906, when the plaintiffs presenteda petition for that purpose, alleging in the petition that the reasonfor the delay was that the defendants had promised to pay, and alsobecause the most valuable land mortgaged was the subject of apartition decree, which was not yet decided. The second defendantfiled an affidavit in opposition, alleging that after the judgment theyagreed with the plaintiffs to allow the plaintiffs to possess the mort-gaged lands for three years, and that in that way the judgmentshould be fully satisfied, that the plaintiffs had been in possession-since 1898; that the three years expired on the 25th March, 1906;and that the amount of the judgment debt had been thereby fullysatisfied.
When the petition came on for hearing, the first defendant didnot appear; the second defendant appeared and waived the claimon the ground of settlement of the debt, but urged that the plaintiffs*were not entitled to the writ because of their delay, which was notexcused.
The District Judge held, on the authority of Ckellappa v. Kandayak,1that the execution-creditors were bound to show that they hadexercised due diligence to procure satisfaction of the decree, or thatexecution was stayed at the request of the debtors. He found thatthey had not done so, and he therefore refused their application.
Section 347 enacts that " ifi more than one year- has elapsedbetween the date of the decree and the application for its execution,the Court shall cause the petition to be. served on the judgment- -debtor, and shall proceed thereon as if he were originally namedrespondent therein.” That seems to mean that in such cases thejudgmentnlebtor must have notice, so that he may state any reasonswhich there^may be against the issue of the writ. But it is saicf onbehillf of the respondents that it has been construed by this Courtin the case relied on by the District Judge to mean' that the creditor*must prove something more than that the debt is still due, that isrhe must also “ explain the delay.”>
1 (1905) Si Balasingham 61.
( 314 )
1907.
September 3.Hutchinson
C.J.
In that case ,the judgment had been given on the 17th July, 1896,and the application for the writ of execution was made on the 11thJanuary, 1905. The District Court made an order allowing theapplication. On appeal this Court set aside the order. Layard C.J.said he was inclined to think that after one year from the date, ofthe decree the creditor ” must satisfy the Court why he has delayedin taking proceedings under his decree/’ He pointed out that” there is no material before us to show that any debt is due underthe decree/* and '* the amount of the debt due under the decreehas not been established/’ Wood Renton J. concurred.
The fact that it was not proved that anything was due was enough *to justify the Court in refusing the writ. But if the- Court meantto rule that, even if the amount due. was proved or admitted, thewrit ought still to have been refused, I cannot think that the rulingwas right.
In Silva v. Alwis1 Wendt J. said that he thought he was boundby the above ruling, and that “ the applicant must satisfy the Courtthat he had reasonable grounds for the delay but he found in thecase before him that the applicant had done so.
The effect of this ruling would be that if the creditor, on a judg-ment which is still in force and wholly unsatisfied, makes his firstapplication for execution on the 368th day after the judgment, andthe debtor appears and admits that the whole debt is still due,execution will not be granted, ' unless the creditor “ explains thedelay.” This would be to create a new Statute of Limitation. TheLegislature has not expressly and, in my opinion, it has not impliedlymade any such enactment.?
In my opinion the District Court ought not to haVfe refused theplaintiffs’ application on the ground on which it did so.
1 do not, however, find any evidence as to the amount of thedebt which is .now due. The second defendant in his affidavit saidthat it had been satisfied. He withdrew that allegation at thehearing. His advocate now asks to be allowed to withdraw thatwithdrawal; but I do not think we should allow 'him to do so.I think the case should be remitted to the District Court for theplaintiffs to prove the amount due. If the defendants have anyclaim against the plaintiff for wrongfully taking or for keepingpossession of the property since 1898,. they must sue for it.
Case remitted to the District Court accordingly. Defendants to
pay plaintiffs' costs of appeal.
«
©
Middleton J.—
I agree that the appeal should be allowed, and that the easeshould be remitted to the District Court on the terms and for thereasons given by my Lord, with which ! entirely concur.
* (1907) 1 App. Court Reports 10&
( 815 )
I do not think it is necessary for me to say more than that. 1907.
I think we cannot read into the provisions of the Civil Procedure September s.Code words which would have practically the effect of extending the Middletonprovisions of the Ordinance regulating the prescription of aotiouswithout the express or implied sanction of the Legislature.
Wood Renton J.—
In my opinion thia appeal must be allowed. The case wasreferred to a Bench of three Judges by Grenier J. and myself forthe purpose of securing a decision on the question whether, as heldby Layard C.J. in Chellappa Chetty v. Kandyah 1 in a judgment towhich I was myself a party, it is necessary for a judgment-creditor toprove that due diligence has been exercised as a condition precedentto the issue of a writ under section 847 of the Civil Procedure Code,where more than a year has elapsed between the date of the decreeand the application for its execution. I do not think, now that thepoint has been fully argued, that any such requirement can be readinto the provisions of section 347. Questions of due diligence ariseonly on applications for re-issue of writs (see section 387, C.P.C.).
Appeal allowed; case remitted.