Siri wardens v. Kitugalla.
1941Present: Soertsz and de Kretser JJ.
SIRIWARDENE v. KITUGALLA et al.
38— D. C. Kurunegala, 16,134.
Execution of decree—Death of defendant—Application for substitution of legalrepresentative—Notice to show cause against execution of decree—CivilProcedure Code, ss. 341 and 347.
Where, on the dpath of the defendant in an action, the plaintiff madean application for the substitution of the legal representatives of thedefendant for the purpose of executing the decree and the legal repre-(sentatives were not only given notice of the application but were'called
upon to show cause why writ of execution should not issue,—
Held, the provisions of sections 341 and 347 of the Civil ProcedureCode were sufficiently complied with and that the application wasregular.
Objection to the taxation of a bill of costs must be made within areasonable time._.
PPEAL from an order of the District Judge of Kurunegala.
L. A. Rajapakse (with him C. T. Olegasegaram), for plaintiff, appellant.
E. B. Wickremanayakerespondents.
(■with him N. M. de Silva), for defendants,
Cur. adv. vult.
116 N. L. B. 360.
DE KRETSER J.—Siriwardene v. Kitugalla.
September 3, 1941. de Kretser J.—
A decree for partition having been entered, plaintiff’s proctor submittedhis bill of costs for taxation with notice to defendants’ proctor. Defend-ants’ proctor then submitted his bill, also with notice. Thereafter thesecretary taxed both bills and on the bills being set off against each otherthere remained a balance of Rs. 1,907.31 in plaintiff’s favour.
The bills were taxed in November, 1939 ; the defendant died in January,1940, leaving a last will in which he named the substituted defendants(respondents) as executors. After waiting till August, presumably tillprobate had issued, plaintiff petitioned the Court to have the executorssubstituted for the purpose of issuing writ. The Court ordered notice onthe respondents, whereupon the plaintiffs issued notice calling upon theexecutors to show cause why they should not be substituted as defendantsand also why writ should not issue. No cause having been shown, theexecutors were substituted as defendants. Plaintiff then applied forwrit and the Court allowed the application. Then the parties parleyed,not with regard to the bills alone but with regard to them as well as anumber of other liabilities of the defendant. The negotiations failedand the property of the defendant was seized and advertised for sale,whereupon the substituted defendants in January, 1941, filed papersalleging that the plaintiff’s bill was excessive and praying that writ bestayed pending inquiry. As an earnest of good faith they deposited theamount of the writ in Court. Once the writ was stayed they filed papersalleging that the writ had been issued without the notice contemplatedby section 347 of the Code and praying that the writ be withdrawn. TheDistrict Judge in a very brief order upheld this contention, ordered returnof the deposit, and directed that the secretary should retax the plaintiff’sbill. Plaintiff appeals.
Attention seems to have been concentrated on section 347 of the Codeand section 341 has been lost sight of. The notice that did issue has alsofailed to receive attention. When defendant died before the decree hadbeen executed, plaintiff was required by section 341 to apply to the Courtto execute it against his legal representatives. The application had to beby petition to which the legal representatives were respondents. It isonly section 341 which deals with the execution of decrees after the deathof the judgment-debtor. Section 347 does not, in my ''opinion, apply atall. The object of section 347 was gained by making the legal repre-sentatives respondents to the petition under section 341. There exists,perhaps, some confusion of ideas owing to decisions under the Indian Codehaving been read without a proper realization of the differences betweenthat Code and ours. Section 50 of the present Indian Code correspondsfairly closely with section 341 of our Code but there is a vital difference inthat it does not require the legal representative to be made a respondentto the application. Section 50 replaced a somewhat similar provision ofthe old Code. It was section 248, now replaced by O. XXI. R. 22 (corre-sponding somewhat with section 347 of our Code) which required the Courtto give notice to the legal representative before allowing execution toissue. We have taken away from section 347 the part which related tolegal representatives and we have added that part in substance to section
DE KRETSER J.—Siriwardene v. Kitugalla.
341. Accordingly decisions under the Indian Code must be carefullyexamined before they are followed. Like the Indian Code, section 341does not require the substitution of the legal representative but there canbe no objection to such substitution. It was held in India that anapplication for substitution was in substance an application for executionbut that the proper application should be one for execution of the decree.Ameer Ali & Woodroffe’s Civil Procedure Code (1908 ed.) at page 263refers to a case in which it was so decided but unfortunately the reportis not available locally. The application which the plaintiff made wasone for substitution for the purpose of execution of the decree, and theexecutors were given full notice not only of the plaintiff’s petition forsubstitution but they were also called upon to show cause why writ ofexecution should not issue. The provisions of section 341 were thereforesufficiently complied with.
When the application came up the Court quite properly ordered notice.Once the requisite notices had been served the Court was entitled notonly to substitute the executors as defendants but also to allow issue ofthe writ. It ordered substitution only. Plaintiff then applied for writand the writ was quite rightly allowed. It would have been raisingtechnicality to the acme of absurdity to have issued notice again on partieswho had been clearly called upon to show cause why writ should not beallowed and had had no cause to show.
The Code contemplates a prompt issue, of writ after decree and requiresexplanation of delay for a re-issue of writ. It follows the same line ofreasoning when it requires the Court to issue notice when a decree is ayear old : it presumes that ordinarily the decree would have been satisfiedby that time. It is for that reason it throws upon the Court the duty ofprotecting the debtor by issuing notice. It follows that when the Courthas every reason to believe that the decree is in fact not satisfied it shouldallow the writ to issue. It is urged, however, that unless a notice undersection 347 issues the Court, has no jurisdiction to issue a writ, and thejudgment of the Privy Council in Reghunath Das v. Sundar Das Khetri isrelied upon. Unfortunately this judgment is said to be unavailablelocally and this Court is asked to rely on the reference to it made inShyam Mandal v. Satinath Banarjee It is there stated that, “ It waspointed out by the Judicial Committee (in that case) that the noticeprescribed by section 248 of the Code of 1882 is necessary in order that theCourt should obtain jurisdiction to proceed against the property of thejudgment-debtor by way of execution ”. It is necessary to know thefacts of the case in order to understand what exactly was decided.
Ameer Ali & Woodroffe in their commentary on O. XXI. R. 22enumerate a number of cases under section 248 in which it was held thatthe issuing of a notice was a condition precedent to the valid executionof, a decree but they do not include the case of Raghunath Das. v. SundarDas Khetri. They state that where a judgment-debtor appears andcontests the decree-holder’s right to execute the decree he cannot objectthat no notice was served on him. The facts of the case now under
i (IM6) 1. It. R. i4 Gal. 964.
ujt, jsJtETSER J.—Sirius ar dene v. Kitugalla.
consideration are even stronger, for there was no question here as to thecreditor’s right to execute the decree but there was an application to haveexecution stayed while the bill of costs was being revised.
The case of Malkharjun v. Narhari was one that went before the PrivyCouncil and it indicates that the absence of notice would be an irregularityand not a matter affecting the jurisdiction of the Court to execute itsdecree. The Indian cases seem to have proceeded on the peculiarities ofeach case and on forms of procedure peculiar to the Indian law. Even,therefore, if section 347 did apply, there is no authority which compelsthis Court to hold that the absence of notice rendered the application forexecution void, and the circumstances I have already set out show thatthe legal representatives did have notice and that .the absence of furthernotice has not caused them any prejudice.
The second point is whether the bill of costs should be retaxed. TheDistrict Judge does not state under what provision he acted when heordered that the bill be remitted to the secretary. In Moharr^ed v. Deen%this Court held that the proper person to refer an objection fqr decision•by the Judge was the taxing officer. There had been no objection to theplaintiff’s bill and consequently no reference by the taxing officer to theJudge, and the Judge perhaps was giving that officer an opportunity torefer any matter to him. But why does he give the legal representativesthe opportunity of so moving the taxing officer ? I can see no reason^ forhis doing so. It is true that the Code fixes no time limit for objections tothe bill but that is only because it presupposes expedition in such amatter. It assumes that a proctor would be business-like in his work.It expects a decree to be executed within a year, and naturally objectionsto a bill of costs would come much earlier.
In Separamadv, v. Wijeytunga’, it was held that objections should bemade promptly, and the dictum of Ennis J. in Meenatchi v. Rengappa-pulle‘, that objection should be made within a reasonable time wasquoted with approval. The respondents made the very feeble excusethat the failure to object was due to the defendant being ill with cardiactrouble and thereafter to their being delayed by the muddled conditionin which he left his estates. But the defendant had his proctor, who hadhad notice, and who was the one person competent to take objection tothe items in the plaintiff’s bill. He not only did not object but filed his ownbill and had it taxed. The objection to the bill is therefore belated andthere should be no revision of the bill. The order of the District Judgeis set aside and it is ordered that the plaintiff is entitled to draw themoney in deposit. He is also entitled to the costs of the inquiry in theCourt below and of this appeal.
Soertsz J.—I agree.
1 25 Bom. H38.
‘ 8 C. L. Bzc. 174.
3 3 C.W. R. 367.
«15 N. L. R. 449.
17J. N. B 17628 (6/621
SIRIWARDENE v. KITUGALLA et al