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WICKREMASINGHE u. JAYAWARDANE.
D. 0., Galle, 49,903.
Decree against defendants—Revival of decree—Application for execution againstheirs of defendants, deceased—Stale application—Old and new procedure.
Where a decree, obtained in 1884, was revived in 1886, and executionwas taken out in September, 1887, and then in August, 1897, an appli*cation was made that the heirs of the judgment-debtors should besubstituted in lieu of the latter:
Held, that the case did not come under section 337 of the CivilProcedure Code, and that the plaintiff was entitled to his applicationas a matter of course, under the practice obtaining before the passing ofthat Code.
HE plaintiff moved on 4th August, 1897, for a notice on therespondents “ to show cause' why they should not be
substituted in lieu of the 1st, 2nd, and 3rd defendants, deceased,against whom he had obtained judgment in 1884 and taken outexecution in September, 1887.M The District Court ordered thatan application by way of petition should be made under section341 of the Code. That order was dated 9th August, 1897, and inobedience thereto the plaintiff petitioned for an order nisi on therespondents to show cause why the decree passed therein againstthe defendants on the 10th September, 1884, should not beexecuted against the 1st, 2nd, 3rd, 4th, 5th, and 6th respondentsas legal representatives of the deceased 1st defendant; the 7th,8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, and 18tbrespondents as the legal representatives of the deceased 2nddefendant; the 19th respondent as administrator of the estate ofthe deceased 3rd defendant; and the 20th respondent as theoriginal 4th defendant.
This petition was filed on the 24th September, 1897, and theorder nisi made returnable on 25th October, 1897. As cause therespondents showed that the writ was returned unexecuted onthe 17th November, 1887. No explanation was tendered as tothe cause of the delay in making the present petition.
The District Judge made the order nisi absolute, holding that“ though the application may be stale, no adequate cause has beenshown against the order nisi.”
The respondents appealed.
Van Langenberg, for appellants.
Dornhorst, for respondents.
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Bonser, C. J.—
This case raises an important point as to the execution ofjudgment decrees.
It appears that the original decree was dated the 10th September,1884. Execution was taken out upon that decree, but the wholeamount was not realized.
In 1886 the decree was revived and execution was again takenout in September, 1887, but the full amount of'the decree wasnot realized.
The matter then slept until August, 1897.
Before the ten years had elapsed from the last issue of execu-tion an application was made that the heirs of the judgment-debtors who had died in the meantime should be substituted onthe record in lieu of the judgment-debtors, to enable the plaintiffto make an application for execution of the decree.
The District Judge made an order allowing notices to be servedon the heirs, but it is stated that he said that it was unnecessarythat an application should be made for a formal order to revivethe judgment, but that it would be quite sufficient if an applica-tion were made to substitute the heirs on the record and forexecution to issue against them.
That application was accordingly made, and was resisted by theheirs on the ground that there was no explanation of the delayin making the application, and that the application was stale.
It is admitted that it was not prescribed by law. The DistrictJudge held that no cause was shown against the application andallowed execution to issue.
In my opinion that order was right. I should have been glad tofind any reason for holding that the application was too late, butI have been unable to do so. The case does not come undersection 337 of our Procedure Code.
The application must therefore be dealt with under the oldpractice. It has been decided by this Court, unfortunately Ithink, that an application to execute a decree made before thecoming into operation of the Code is not an application underchapter XXII. of the Code, and therefore that section 337 is nobar to a subsequent application made after the coming intooperation of the Code.
It appears that decrees under the old practice were allowed tobe revived as a matter of course. It was necessary to cite thedebtors, but that was only for the purpose of giving them anopportunity to show, if they could, that the debt had been paid orotherwise satisfied. It would appear that it was not necessary for
February 3.Bonseb, C.J.
the plaintiff to give any explanation of his delay. The casereported in 3 Lorenz 210 seems to be clear on this point. That-being so, the petitioner in this case is entitled to issue his writ.
I agree. This is really an application to revive judgment underthe old procedure. The plaintiffs were entitled to an order ofrevival as a matter of course. They cited the heirs of thejudgment-debtor to show cause why the order should not be madeabsolute.
The objection that they took was that there was long delay onthe part of the plaintiffs in making the application. The DistrictJudge, however, held that no sufficient cause was shown againstthe application and made the order now appealed from, whichshould be affirmed.
WICKEEMASINGHE v. JAYAWARDANE