Siyaneris v. Peiris
1937Present: Koch and Moseley JJ.
SIYANERIS v. PEIRIS et al.
S. C. 46—D. C. (Inty.) Colombo, 52,738.
Writ—Seizure under writ—Writ not reissued on the returnable day—Propertyseized and sold under another writ—First writ reissued—Validity ofseizure.
The failure to extend the period of execution in a writ on or beforethe returnable day does not render the seizure effected before that dayabortive.
Andris Appu v. Kolande Asari (19 N. L. R. 225) followed.
Cur. adv. vult.
J^PPEAL from an order of the District Judge of Colombo.
In this case writ issued from the District Court of Colombo and wasmade returnable on July 27, 1934. On that day it was duly returnedbut was not reissued till November 23, 1934. In the meantime theproperty was seized and sold under a writ issued in D. C. Ratnapura,case No. 5,858. The District Judge of Colombo ordered the fiscal tobring into the District Court of Colombo the proceeds realized by himat the sale. From this order the appellants appealed.
N. E. Weerasooria (with him J. R. Jayawardene), for appellant.—
If the writ is returned it is dead unless the time had been extended.The proctor can make the application on that very day. The wholeday is open for them to get an extension of time.
[Koch J.—If the application is made on the subsequent or later datethen it is for a fresh writ.]
That is so. (Wijewardene v. Schubert'.)
[Koch J.—In that case the writ was recalled, but in this case thewrit was returned.]
When it was recalled, it was returned. The parties wrongly thoughtthat the judgment was satisfied and the writ was recalled. In themajority of cases where the Court thinks that -it has been wrongfullyissued, it was recalled. The result of a return of a writ as a result of arecall has the same effect as the return after the expiry of time.
» (1906) 10 N. L. B. 90.
KOCH J.—Siyaneris v. Peiris.
Gurusamy Pulls v. Meera Lebbe1 and Andris Appu v. Kolande A sari *show that a reissue cannot be asked for after the returnable day.
Section 337 deals with the application for a second issue. The Courtcan fbt the time and it can extend the time.
[Koch J.—The Attorney-General v. Ponniah * is against you.]
The plaintiff did not register the seizure.
L. A. Rajapakse (with him G. P. J. Kurukulasuriya), for respondent.—Wijewardene v. Schubert (supra) is distinguishable from this on the follow-ing two grounds. The writ was recalled on the consent of all the parties.Thereupon the writ being dead, a mortgage was executed. There wasno seizure subsisting. He obtained a fresh issue of writ which culminatedin a sale.
In Gurusamy Pulle v. Meefa Lebbe (supra.) there was a period of fiveyears between the return. Hence the Court inferred that it wasabandoned.
Patherupillai v. Kandappen* which supports the appellant’s contentionhas been expressly overruled by the later judgment in Andris Appu v.Kolande Asari (supra).
periar Carpen Chetty v. Sekappa Chetty", Perera v. Mudalali’, andPunchi Appuhamy v. Dharmaratne7 suppoit the view adopted by thelearned District Judge.
Cur. adv. vult.
J.R. Jayavmrdene, in reply.
January 20, 1937. Koch J.—
The point that arises in this appeal is interesting and of someimportance. Are proceedings in execution held by the fiscal of no effectand unrecognizable in law, if on or before the returnable day of the writto Court, the period appointed for execution in that writ is not extended ?
It is argued that the failure of the judgment-creditor before or on thereturnable day to move for and obtain, or of the Court to direct, a reissueof the writ, is to render the writ dead and all acts done thereunder ofno avail.
The relevant legal proceeding in this case is a seizure effected undera writ that issued in D. C. Colombo, case No. 52,738, for it is on thefooting that the seizure was valid and existing that the learned DistrictJudge of Colombo, acting under section 351 of the Civil Procedure Code,has directed the fiscal to bring into the District Court of Colombo theproceeds realized by him at a sale held in execution of a decree enteredin D. C. Ratnapura, case No. 5,858, and pursuant to a subsequentseizure.
If the seizure in the Colombo case can be recognized in law, the orderof the Judge is right.
i (1914) 17 N. L. R. 467.a (1916) 19 N. L. R 225.s (1908) 11 N. L. R. 245.
1 (1913) 16 N. L. R. 298.
6 (1909) 2 Current L. R 162« (1926) 27 N. L. R. 483.
(1934) 36 N. L. R. 113.
KOCH J.—Siyaneris v. Peiris.
Now, the writ under which the seizure was effected was returnableon July 27, 1934, On that day, it was duly returned but was notreissued till November 23, 1934.
The question has arisen whether the failure to extend the period ofexecution in the writ on or before the returnable day renders the seizureeffected before that day abortive. This will materially depend on whatthe effect is of returning a writ to Court on the returnable day.
Applications for writs in pursuance of decrees are made under section 224of the Civil Procedure Code, but there is nothing in the section or in anyother section which provides for the fixing of a returnable date. Therehowever appears a provision in section 225 which authorizes a Court todirect a writ to issue in form No. 43 as appearing in the Second. Scheduleto this Ordinance. On reference to that form, it will be seen that thefiscal is directed to levy seizure and sell and have the money before theCourt on an appointed day. Since the Code came into operation, thisdate has in practice been called the returnable date.
The fiscal’s return to the writ on that day will disclose either thatmoneys have been realized by execution and sale, or that there has beenno property of the judgment-debtor available for execution, or thatonly partial execution has taken place. In short, on that day the fiscalwill inform the Court as to what steps, if any, have been taken on thewrit. During this period the fiscal may have, from time to time,exercised his discretion in acting, e.g., in adjourning a sale (vide section 342of the Civil Procedure Code), and in doing so he will have “ to reportto Court in his return to the writ or sooner the cause for which theadjournment is made ”. The Court, mero motu, will then have the powerto reissue the writ—Attorney-General v. Ponniah1—so as to permit thefiscal to complete his work. But this order can also be, and is often,made on the application of the judgment-creditor or at the instance ofthe fiscal himself.
Again, section 339 requires the fiscal, if the latest day specified in thewarrant has on its return been exceeded, to endorse upon the warrantthe reason of the delay and to return the warrant with such endorsement.
These provisions would rather suggest, and there is nothing in theCode to the contrary, that, even after such a return is made, the pro-ceedings had by the fiscal up to that date will continue to be recognizedas valid unless expressly nullified- Property seized under such a writwould be “ in custodia legis ”—Letchiman Chetty v. Muthusamy Pillai2—and this being so, there is no reason why the Court should be preventedfrom extending the period of execution at its convenience by orderinga reissue of the writ, and especially so as the fiscal in exercising thediscretion allowed him by law may delay to conclude the executionproceedings entrusted to him before the day fixed in his mandate—a contingency for which the judgment-creditor cannot be held responsible.-
Abuse by the judgment-creditor of his privilege to apply for a reissue-of the writ after the returnable day can be prevented by the Courtregarding an inordinate delay on his part to do so as an abandonment
»11 N. L. B. 245.
3 A. C. B. 103.
KOCH J.—Siyaneris v. Peiris.
of his right to proceed under the writ—Gurusamy Pillai v. Meera Lebbe 1Yappahamine v. Weerasuriya e, Andris Appu v. Kolande Asari'.
Mr. Weerasooria has referred us to a number of decisions and hasargued therefrom, to use the language of Ennis J., that “ where a writis returned on the returnable day and no order for extension is made,the authority of the fiscal to hold has ceased and the seizure terminates ”—Andris Appu v. Kolande Asari (supra). The cases he has cited are :(1) Wijewardene v. Schubert *, (2) Attorney-General v. Ponniah (supra),
Yappahamine v. Weerasuriya (supra), and (4) Gurusamy Pillai v.Meera Lebbe (supra).
It is true that Wijewardene v. Schubert is a decision of a DivisionalBench, but in that case there was a recall of the writ, and I quite agreewith the words of Middleton J. that “ the effect of recalling a writ is tonullify the seizure that has been made under it I should like, however,to draw attention to the circumstance that Wendt J., one of the otherJudges, emphasized, namely, that “ nothing was done by the Courtor the fiscal which purported to revive that seizure
These decisions no doubt do assist Mr. Weerasooria in his contentionand create difficulty and it was for that reason that Sampayo J. thoughtit as well that an analogous point should be referred to a Bench of three■Judges. It was in that case—Andris Appu v. Kolande Asari (supra) —that Ennis J. expressed himself in the way in which he did, but themajority of the Bench, consisting of Wood Renton C.J. and Sampayo J.,did not agree with him in that opinion. Wood Renton C.J. calledattention to the fact that the ruling in Periar Carpen Chetty v. SekappaChetty * was not brought to the notice of the Judges who decided Patheru-pillai v. Kandappen° and Gurusamy Pillai v. Meera Lebbe (supra); andin doing so endorsed the opinion of Hutchinson C.J. in that case.
What Hutchinson C.J. held on the facts, which were that the writwas returned to Court on July 1907, and application for reissuewas allowed on August 27, 1907, was that the writ was not recalledbut allowed to reissue and the seizure made under it in November, 1905,still remained in force. Sampayo J. expressly disagreed with thecontention that “ the Court, though it may extend the currency of a writif application is made for that purpose before its returnable date, has nopower to do so after the period originally fixed for its return has expired
I am, for the reasons I have previously given, in entire agreementwith the views expressed by the majority of the Court in Andris Appu v.Kolande Asari (supra).
I therefore hold that the seizure effected in D. C. Colombo, caseNo. 52,738, was alive and valid at the date of the learned District Judge’sorder and that the learned District Judge is right in the order he made.
The appeal is dismissed with costs.
Moseley J.—I agree.
» 17 N. L. R. 467 at p. 471.
* 17 N. L. R. 183 at p. 188.
3 19 N. L. R. 225 at pp. 232, 233.
« 10 N. L. R. 90.
6 2 Current Law Reports 162.• 16 N. L. R. 298.
SIYANERIS v. PEIRIS et al