Sundarampillai and Salha Umma.
■1942Present: Howard C.J. and Soertsz J.
SUNDARAMPILLAI, Appellant, and SALHA UMMA, Respondent.
_ 74—D. C. Colombo, 3J259.
Writ—Interruption of execution proceedings by claim—Release of seizure-re-fresh application for writ—Prescription—Civil Procedure Code, s. 337.Where on a writ issued to execute a decree, property is seized and,upon a claim being preferred, the seizure is released, a subsequentapplication for a writ is not one merely to resume execution proceedingsinterrupted by' the claim but is a fresh application which would be.barred under section 337 if it was made 10 years after the decree.
» 11912) 13 Cr. L. J.251.
SOERTSZ J.—Sundarampillai and Salha Umma.
Semble, where, in such a case, time has run against a decree-holderwhile he is contending that the property in question is liable to saleunder his writ, and, where he succeeds eventually, it is open to him toobtain execution of the decree in the 247 action.
Silva v. Silva (5 C. W. R. 98) and Per<era ri Mudalali (27 N. L. R. 483)referred to.
j^PPEAL from an order of the District Judge of Colombo.
S.'Nadesan (with him Chellappa), for substituted-plaintiff, appellant.
Cur. adv. vult.
October 29, 1942. Soertsz J.—
This is an appeal from an order refusing an application made by thesubstituted-plaintiff in this case to execute a decree obtained by theoriginal plaintiff, in the District Court of Colombo, on May 2, 1928, andassigned by him to the appellant on November 1, 1934. This applicationwas made on September 18, 1942, and the purpose of the application,to quote from the petition, is “ to enable . the substituted plaintiffto sell the properties already seized by him, and declared liable to besold by the District Judge in case No. 6,504 of the District Court ofRatnapura ”.
The Judge before whom this application came up for considerationheld that it was obnoxious to section 337 of the Civil Procedure Codebecause it is “ a subsequent application ” made after the expiration often years from the date of the decree sought to be enforced. He rejectedthe appellant’s contention that this is an application to resume executionproceedings that had been interrupted by a claim preferred to theproperty seized under the decree, arid by the action that followed on theclaim being upheld.
In oi'der to determine the question that arises on this applicationand the contention advanced against it, a statement of the material factsthat preceded the application is necessary. Those facts are as follows : —The decree in this case was entered on May 2, 1928, in favour of theoriginal plaintiff for Rs. 2,156.57, and interest and costs against thedefendant as administratrix of her husband’s estate. He took out writand succeeded in recovering a sum of Rs. 891.46. Thereafter, by a deeddated November 1, 1934, he assigned and transferred his decree, in respectof the balance that remained due, to the appellant who, in virtue of it,moved for and obtained substitution in his place, and then seized a landknown as Ganelandaenblerwatta. On that seizure being effected thedefendant, in her personal capacity, and her children preferred a claimunder section 241 of the Civil Procedure Code. That occurred towardsthe end of i937. The claim was upheld. Thereupon, the appellantinstituted an action under section 247 to have the property that hadbeen seized declared executable under the decree. That action wasinstituted in the District Court of Ratnapura; the land seized beingjsituated within the jurisdiction of that Court. Judgment was'deliveredon May 14, 1940, declaring a half of the land seized executable. -Beforethat judgment came to be entered the appellant'applied fOr a writ “toenable to seize and sell certain other lands which the defendant is said
SOEETSZ J.—Sundarampillai and Salha TJmma.
to be possessed of”. That application was considered on August 30,1940, and it was disallowed on the ground that it was a subsequentapplication made after the expiration of ten years and, and as such,barred by section 337 of the Civil Procedure Code. This order was basedon the interpretation of section 337 given by de Sampayo J. in the case ofSilva v. Silva'. There was no appeal from that order, and Counselwho appeared before us in support of the present appeal conceded thatit was a correct order. But he contends that the present applicationis on an entirely different footing for, he submits, it is, in effect, an applica-tion to be allowed to re-issue his writ, in order to sell the property he hadseized in 1937, that is to say, within ten years of the decree.
The question then is whether that submission is sound ; whether thewrit of 1937 and the seizure effected in virtue of it continued to exist inlaw, although in a state of suspended animation. The word “ re-issue ”in the phrase “ re-issue of a writ ”, obviously, postulates an existent writ.A Divisional Bench of this Court pointed out in the case of Andris Appuv. Kolande Asari that this word “ re-issue ” does not occur in the Codeitself in connection with writs of execution, but “ is commonly used toexpress the fact that the same writ is issued again for execution or furtherexecution ”. The point that arose in that case was whether in a casein which the Fiscal applied to the Court for an extension of time one dayafter the writ was due to be returned, a fresh seizure of the propertythat had been seized under it was necessary to enable the property to belawfully sold, or whether the seizure already effected affords foundationfor the sale. The Judges held that a fresh seizure was not necessarybecause, to quote from the judgment of de Sampayo J. (at pages 232, 233)“ a seizure once, effected remains operative until its renewal or withdrawalby order of the Court or, as I ventured to say in my judgment in Yapa-hamine v. Weerasuriya by circumstances of abandonment ”. Thisview is reinforced by the judgments delivered in the la tec case of Punchi-appuhami v. Dharmaratna'. There is another Divisional Bench case,that of Perera v. Mudalali3 bearing on this question. In that case, on adecree entered against the first defendant there in 1909, a property wasseized on August 5, 1916, and the seizure was registered on the 18th ofthat month. A sale was held under this seizure but the Fiscal reportedthat the purchaser had made default. There were seyeral subsequentapplications for execution but none of them bore fruit. Then, onNovember 11, 1921, ten years after the date of the decree, a furtherapplication was made under section 337, and was allowed. But-no stepswere taken. Writ was again re-issued and the same property wasseized and a sale was held on November 6, 1922. The second defendantbought the property. Meanwhile the first defendant mortgaged thisproperty on a bond of December 11, 1916, registered on the 21st of thatmonth, with the plaintiff, who sued on his bond. In this competition ofinterests, the majority of the Bench held in favour of the seconddefendant, on the ground that the seizure on which the sale must be heldto have taken place was the seizure effected and registered in 1916, 1
1 5 C. IP. R. 98.3 37 L. R. 183.
* 19 N. L. R. 225* 36 N. L. R. 113.
» 27 N. L. R. 483.
SOERTSZ J.—Sundarampillai and Salha Umma.
and not on the seizure 1>f 1922, which they said was unnecessary. In thecourse of his judgment, Dalton J. made this observation (p. 494)“whether or not an application under section 337 is a step in formerproceedings or an entirely new proceeding must depend upon thecircumstances
In view of the rules enunciated in these cases, the crucial questionfor consideration, in the present instance, is whether this application “ isa step in the former proceedings or an entirely new step” or, in otherwords, whether the application can be made referable to an existentseizure.
In regard to this question, Counsel for the appellant referred to twoIndian decisions of the Full Bench of the High Court of Allahabad.In the earlier case, that of Para Ram v. Gardner the majority of theJudges held that an application to execute a decree against a judgment-debtor’s property made more than three years after the last applicationwas not barred by limitation under section 167 Sch. 2 of Act IX. of 1871,which was the act in operation at that time for, as in that case, the lastapplication had been interrupted by a successful objector against whomthe decree-holder had to bring a regular suit ; that the renewed applica-tion to execute within three years of the. judgment-creditor obtainingjudgment in that regular suit was not a. first application, but a continuanceor revival of the previous application, that had been interruptedby the objector. Pearson J. dissented in what, to me,- appears to be avery convincing judgment, but in the absence of the Act of 1871, whichI have not been able to get, a fuller consideration of the matter is notpossible.
The other case, however, arose under the Indian Code of CivilProcedure of 1882, which is the Code on which our own Code is largelybased. That case is the case of Rahim Ali Khan et al v. Phue Chand “in which the Bench held that where an application for execution inaccordance with section 235 (our section 224) of the Code within theperiod of limitation prescribed by section 230 (the equivalent of oursection 337) of the code, had been made and been allowed, the right ofthe decree-holder to obtain execution will not necessarily be defeated if,by reason of objections oil the part of the judgment-debtor, or actiontaken by the Court, or .other cause for which the decree-holder is notresponsible, final completion of the proceedings in execution cannot beobtained within the period of limitation. Knox J. based his decisionon the ground that “the attachment of the property made on the writobtained on the first application has subsisted ever since and has notmatured ' into sale solely by reason of difficulties and objections whichthe appellant has placed in the way and which have had, one by one,to be removed The other Judges came to the same conclusion butfor different reasons, such as that the application for execution contem-plated in section 230 (our 337) is not “ an application to proceed with theapplication for execution already made and granted ” (Bannerji J.) ;or that “ it is no violation of section. 230 for the Court now to proceedupon the application which was granted by an order passed within1 1 Allahabad 355.* 18 Allahabad 482.
SOERTSZ J.—Stindarampillai arid Salha Umma.
time, but which order for no fault of the decree-holder and owing tocircumstances beyond his control has not been carried out ” (Aikman J.).But if I may say so with very great respect, these latter interpretationswhittle down the scope of the section in an unwarranted degree, and areopposed to the view taken by de Sampayo J. in Silva v. Silva (supra),when he said “ section 337 of the Civil Procedure Code inter alia providesthat, where an application for execution have been made and granted, nosubsequent application shall be granted after the expiration of 10 yearsfrom the date of the decree. This limitation of 10 years is absolute what-ever may have happened in the meantime The basis upon whichKnox J. put his judgment was that it was not a case of a subsequentapplication for a writ, but an application to carry out a sale to completea seizure that was subsisting. That is the important question as pointedout in the local cases I have already referred to—Andris Appu v. KolandeAsari (supra) and Perera v. Mudalali (supra)
In the Indian case, Knox J. pointed out, “ the attachment has subsistedever since ”, and on the facts of that case it was so, because the objectionmade by the objectors was rejected under section 381 of the Indian Code(our section 245).
In the case we are now considering however, the claim that waspreferred upon the seizure being effected was upheld and, consequently,in virtue of section 244 of our Code, the property must be held to havebeen released from seizure. That section enacts that if upon investigationthe Court is satisfied in regard to the facts mentioned in the section
.. ,.. “The Court shall release the property wholly, or to such
extent as it thinks fit, from seizure”. On the facts of this case it is clearthat the whole property seized must be deemed to have been so released,for the 247 action that followed was in respect of the whole land. Itfollows, therefore, that at the time the present application was made,there was no seizure and the present application is, clearly, a subsequentapplication for a writ to authorise a fresh seizure, and not merely anapplication to carry out a subsisting seizure to its goal—a sale.
For these reasons, I am of opinion that the present application is barredby section 337.
Counsel for. the appellant adduced instances of hardship that couldaccrue in a case like this by reason of protracted claim proceedings and247 actions and appeals. But' it seems to me that in a case like this, wheretime'has run against a decree-holder while he has been engaged in contend-ing that the property in question is liable to sale under his writ and hassucceeded eventually, it is open to him to obtain execution of the decreehe has obtained in the 247 action and so attain the end in view, that is tosay, complete or partial satisfaction of his decree. At any rate, as atpresent advised, I do not see any good reason for saying that he maynot take such a course.
I dismiss the appeal.
Howard C.J.—I agree.