056-NLR-NLR-V-39-WIJEYEWARDENE-v.-RAYMOND.pdf
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SOERTSZ J.—Wijeyewardene v. Raymond.
1937Present: Soertsz and Hearne JJ.
WIJEYEWARDENE v. RAYMOND14—D. C. Kurunegala, 17,537
Writ of execution—Application after one year from, decree—No petition oraffidavit necessary—Court is required to give notice to respondent—CivilProcedure Code, ss. 224 and 347.
Where application for execution of a writ is made one year after thedate of the decree, the application need not be by petition.
In such a case the Court is required by section 347 of the Civil Pro-cedure Code to give notice to the judgment-debtor in order to give himan opportunity to be heard against the issue of the writ.
Muttiah Chetty v. Meera hebbe Marikar (1 S. C., R. 244) followed ;Perera v. Novishamy (29 N. L. R. 242) not followed.
Per Soertsz J.—There is no provision in the Civil Procedure Code,which requires an application for execution to be supported by affidavit.
.A. PPEAL from an order of the District Judge of Kurunegala..
S. L. P. Abeyesekera (with him Senaratne), for plaintiff, appellant.
Tisseverasinghe (with him C. T. Olegasegaram), for defendant, respon-dent.
Cur. adv. vult.
June 22, 1937. Soertsz J.—
In this case the defendant-respondent obtained a decree for costsagainst the plaintiff-appellant on July 23, 1934. After more than a year
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SOERTSZ J.—Wijeyewardene v. Raymond.
had elapsed he applied for a writ of execution against the appellant forthe recovery of the amount due to him on the decree. Notice of thisapplication was duly served on the appellant and he was required to showcause, if any, why the application should not be allowed. He had noother cause to show, except that proper procedure was not followed andthat necessary materials were not placed before the Court for adjudi-cation ”. The trial Judge overruled the objection and directed writto issue.
The appeal is from that order.
The objection taken by the appellant in the terms I have quoted wasamplified by his Counsel on the hearing of the appeal to mean that thieapplication for execution should have been refused inasmuch as althoughover a year had elapsed since the date of decree, it was not made on apetition supported by the affidavit. I wish to say at once that there isnothing in the Civil Procedure Code, so far as I am aware, to require anapplication for execution to be supported by affidavit. Even the conten-tion that in cases where a period of one year has elapsed, theapplication should be by petition is based on the fact that section 347provides that “ in cases where there is no respondent named in thepetition of application, for execution …. the court shall causethe petition to be served on the judgment-debtor” …. It is sub-
mitted for the appellant that those words mean that a petition isnecessary where over a year has elapsed from the date of the decreesought to be executed. In my opinion that submission is unsound.Section 224 of the Code states how the application for writ should bedrawn up. There is no provision in it for the judgment-debtor beingmade a respondent for the reason, I suppose, that judgment having goneagainst him he should expect that the judgment would be put intoexecution. But section 347 says that in cases where there has been, adelay of over a year in applying for a writ the debtor shall be served bythe Court, with the petition for execution and that he be heard to showcause as if he had been made a respondent. He is not required to benamed as respondent by the decree-holder-. The decree-holder is onlyrequired in applying for writ to comply with the provisions of section 224of the Code. But when that application comes before the Court andthe Court sees that over a year has elapsed the Court is required toproceed as if the judgment-debtor was a respondent to the applicationand to notice him of the application and proceed as if he had originallybeen named a respondent, that is to say, give him an opportunity to beheard against the issue of the writ.
The words with which section 347 begins, namely, “ in cases where thereis no respondent named in the petition of application for execution” areunhappily chosen. In no case is there a definite provision in the Codetor the judgment-debtor being made respondent to an application forwrit. I find that in section 248 of the Indian Code of 1882 which is thecounterpart of section 347 of our Code, those words do not occur. TheIndian section runs as follows : —“ The Court shall issue a notice to theparty against whom execution is applied for, requiring him to show cause…. why the decree should not be executed against him—(o) if
.more than one year has elapsed between the date of the decree and the
SOERTSZ J.—Wijeyewardene v. Raymond.
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application for its execution, or (b)…. provided that > no such
notice shall be necessary in consequence of more than one year havingelapsed between the date of the decree and the application for executionif the application be made within one year from the date of any decree,passed on appeal …. or if the last order against the party againstwhom the execution is applied for, passed on any previous applicationfor execution ” …. I have omitted those parts of this sectionthat have no application to the present case.
It is not clear to me why our section departed from the language usedin the Indian section in the opening part of it and provided that “ incases where there is no respondent named in the petition of applicationfor execution”. As I have already observed'there is no earlier provisionfor a respondent to be named in certain circumstances, and the interpret-ation I venture to put upon these words is that they should be read in thiscontext to mean “ although there is no respondent named in the petitionof application for execution”. This reading is supported by the factthat the duty is cast on the Court where more than one year has elapsedto cause the petition to be served although in the form in vjhich thepetition is presented to the Court by the applicant for execution inaccordance with section 224, no respondent, is named. I find O’Kinealyin his Commentary on the Indian section quotes from an Indian caseGooroo Das v. Modhos1 as follows:—“ The judgment-creditor should askfor the execution of the decree and not for the issue of a notice ; it is theduty of the Court to issue the notice ”.
In regard to the words “ petition” of application for execution whichhave been seized upon by the appellant for insisting that the applicationshould have been by petition and not on the form No. 42 in the scheduleto the Civil Procedure Code, I would respectfuly agree with Withers J.and adopt his words in Muttiah Chetty v. Meera Lebbe MariTcar' “ Petitionin this section to my mind obviously embraces the written applicationrequired by the 224th section ”. I have examined this question at somelength as it is one that arises with some frequency and not because thepresent case is one of any merit. In fact, in my opinion, the attitude ofthe appellant is a vexatious one. He says I have no cause to showexcept that you have not crossed your t’s and dotted your i’s. In thisconnection I would refer to the observation of Dalton J. in Nanayakkarav. Sulaimanto the effect that in execution proceedings the Court willlook at the substance of the transaction and will not be disposed to setaside an execution upon merely technical grounds when the executionhas been found to be substantially right
The case of Perera v. Novishamy * cited to us dealt primarily with thequestion of a re-issue of writ and of exercise of due diligence on theprevious occasion and therefore, it is not quite in point, but in so far as. itwas there laid down that according to section 347 “ the applicationshould be by petition and the judgment-debtor should be named as.respondent ”, I venture to dissent.
The appeal is dismissed with costs.
1 6 Sutherlands IV. R. Mis. 98.* 1 S.C. R. 244.
3 28 N. L. R. 314.'* 29 N. L. R. 242.
182The King v. Mendis.
Hearne J.—
The point in this appeal is whether the order made by the Judge forthe issue of a writ in execution of a decree which had been obtained morethan a year prior to the application was bad for the reason that in theapplication “ there was neither a petitioner nor a respondent namedIn Perera v. Novishamy the view would appear to have been takenthat in cases where more than a year has elapsed between the date ofdecree and application for execution a special "mode of application, namely,by petition, has been prescribed by section 347 of the Civil ProcedureCode. With this view I find myself unable to agree. The object of thesection, as it appears to me, is merely intended to ensure -that where adelay of more than a year has occurred in applying for execution, theCourt, instead of making an order in the absence of the judgment-debtor,will in the first place cause the application to be served upon him andgive him an opportunity to be heard. Applications for execution aremade under section 224 of the Civil Procedure Code and the word“ petition ” unhappily introduced into section 347 is in my opinionidentical with an application under section 224. I respectfully agree withWithers J. in Muttidh Chetty v. Meera Lebbe Marikar~, where he says“ Petition in this section to my mind obviously embraces the writtenapplication required by section 224 ”.
I would dismiss the appeal with costs.
Appeal dismissed.