010-NLR-NLR-V-25-SSAIBO-v.-SAIBO-et-al.pdf
( 56 )
1923.
Present: De Sampayo A.C.J. and Porter J.SAIBO v. SAIBO et al.
38—D. C. Colombo, 46>722.
Civil Procedure Code, 8. 234—Seizure of decree in favour of debtor—Is notice to judgment-debtor's debtor necessary ?—Payment tojudgment-debtor by his debtor after seizure—Is mortgage decree“ decree for money.”
Where a person seizes under section 234 of the Civil ProcedureCode a decree in favour of his judgment-debtor, notice of the seizureneed not be given to the judgment-debtor’s debtor. Payment tothe judgment-debtor by his debtor after that seizure is null andvoid as against the creditor who seized the decree.
A mortgage decree is a “ decree for money,” and is seizableunder section 234.
'JpHE facts are set out in the judgment.
Hayley (with him Tisseveresinghe)> for appellant.
Samarawickreme, for respondents.June 1, 1923. De Sampayo A.C.J.—
Cur adv. vult.
A question of civil procedure arises for decision from the followingstate* of facts. The plaintiff sued the defendants on a mortgagebond and obtained judgment onNovember 2,1917, for Rs. 18,093 * 75,with interest on Rs* 15,000 at 13£ per cent, from December }2,1916, till November 2, 1917, and thereafter with interest on theaggregate amount of principal and interest at 9 per cent, till paymentin full and costs of action. Though writ appears to have beenissued, the decree was not executed by sale. On December 12,1919, the appellant, who had obtained decrees in two other casesagainst the plaintiff for the aggregate sum of Rs. 2,608 * 75, causedthe decree in this case to be seized in execution in pursuance of theprovisions of section 234 of the Civil Procedure Code, and a recordwas made of this seizure in the general entries of the case. Theplaintiff’s proctor appears to have been present, and it was byconsent ordered that the decree was not to be executed till January16, 1920. Notwithstanding this seizure, it is surprising to findthat the plaintiff’s proctor on January 24, 1921, without anynotice to the seizing creditor, moved that full satisfaction of thedecree be certified and entered of record, and the Court made arecord accordingly. The implication is that the judgment-debtor,the defendant in the case, had paid out of Court or otherwisesettled with the plaintiff. On November 1, 1921, the irregularityof the certification being pointed out, the Court cancelled the
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order, and allowed execution to issue at the instance of the seizingcreditor. After some delay due to the difficulty of serving certainnotices, some property belonging to the first defendant was seizedand advertised for sale by the Fiscal. Thereupon on December13, 1922, the first defendant appearing by a proctor moved thatthe sale be stayed and the property released from seizure. Thegrounds for this motion were : (1) That the seizure of the decree inthis case was bad, because no notice had been given to the judgment-debtors, the defendants ; and (2) that the first defendant had paidto the plaintiff the full amount of the judgment on January 19,1921. The District Judge decided both these points in favour ofthe first defendant, and allowed the motion- The seizing creditorhas appealed.
Section 234 does not provide for any notice to be given to thejudgment-debtor, nor does the practice of the Court require any.This section corresponds to section 273 of the old Indian Codewhich is similarly silent as to notice. But Order 21, rule 53 (6),of the new Indian Code for the first time provided for such notice,impliedly emphasizing the fact that under the old Code no noticewas necessary. It appears to me that the reason of the thingobviates the necessity of giving notice to the judgment-debtor,and, it is probable, that the rule under the new Code providedfor the notice out of abundance of consideration for the judgment-debtor. For, the party who is affected by the seizure is the decreeholder, and the seizure does not directly concern the judgment-debtor who must, in any event, pay, whether to the decree holderor to the seizing creditor. The District Judge relies on section 236of the Civil Procedure Code which declares—
“ When a seizure of any negotiable instrument, debt, share,money, decree, or any other movable property has beeneffected and made known in manner hereinbefore provided,any private alienation of the property seized ….shall be void as against all claims enforceable under theseizure.”
The District Judge emphasizes the words “ made known- inmanner hereinbefore provided,” and thinks they refer bach tosection 229 under which the judgment-debtor was to receive notice.That section, however, deals with the mode of seizure of debts,'shares, and other movable property, and not with the mode of.seizure of decrees, which is specially dealt with by the later sections234 and 235, and as these two sections do not provide for any noticeto the'judgment-debtor, it is obvious that the words “ made knownin manner hereinbefore provided ” cannot refer to the seizure ofdecrees. As section 236 is a general provision and refers to seizuresof various kinds of property, the above words must, I think, belimited to. cases to which they in terms are applicable.
1923.
De Sampavo
A.C.J.
Saibo v.Saibo
1923.
De Samfayo
A.C.J.
Saibo v.Saibo
( 58 )
If there hits been a proper seizure of the decree, then the allegedpayment to the plaintiff after that event is null and void. Thejudgment-debtor is also precluded from proving the payment inthe manner he sought to do. He was allowed to give oral evidenceon that subject, notwithstanding the seizing creditor’s objection.The provision of section 349 makes the record and certificationby the Court the only admissible evidence. The judgment-debtor,however, relies on the order made on January 24, 1921, at theinstance of the plaintiff, but as already stated that order was sub-sequently cancelled by order of the Court on November 1, 1921.In this connection it is contended that this order of cancellation isinoperative as against the j udgment-debtor, because he had nonotice of the application to cancel the previous order. It may be—though as at present advised I cannot say so—that he. ought tohave got such notice, but the absence of notice does not make theorder null and void, as though it had never been made. The orderstands, and must be recognized until it is itself vacated. I am themore inclined to apply this view of the rule of procedure, becauseI feel considerable doubt on the question of fact. The judgment-debtor swears that he paid the full amount of the decree to theplaintiff on January 24,1921, and that the money was the proceedssale of a land on deed dated January 19, 1921. But I find thatthe consideration for that deed was Rs. 11,500 only, and I cannotunderstand how with that money-he paid the full amount of thedecree, which was for Rs. 18,093'75, with further interests andcosts of action. This circumstance, coupled with the fact thatthe plaintiff had moved for and got a record made of the full satis,faction of the decree, is calculated to raise a suspicion as to thebona fides of both the plaintiff and the defendant. ^
I may here notice a minor point taken on behalf of the defendant,namely, that a mortgage decree is not “ a decree for money,” andis therefore not seizable under section 234 of the Code. Relianceis placed on Indian decisions on the subject. In India, however,the form of mortgage is quite different from ours, and it would seemthat a mortgage decree there is likewise different. In any case,with us a decree in a mortgage action is a decree for money, with afurther order for the realization of the mortgage security. SeeDon Jacovis v. Perera.1
In my opinion this appeal should be allowed, with costs in bothCourts, and the appellant permitted to execute the decree for hisown benefit.
’outer J.—I agree.
Appeal allowed.
1 (1906) 9 N. L. R. 166.