040-NLR-NLR-V-01-SHEIK-ALI-v.-CARIMJEE-JAFFERJEE.pdf
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SHEIK ALI v. CARIMJEE JAFFERJEE.
D. C., Colombo, 4,850.
Rei vindicatio—form of decree—Detinue—Civil Procedure Code, 8». 191,
320-322.
Though in an action of detinue decree for delivery of the articlesclaimed or payment of their value is admissible, yet such an alternativedecree is not regular in an action rei vindicatio, the question of compen-sation arising only when it is ascertained that the property could not berestored, and the amount of compensation being dependent on the conductof the defendant.
Per Bonser, C.J.—Sections 320-322 of the Civil Procedure Codeseem to be in accordance with the Roman-Dutch Law and practice, andsection 191 should be disregarded as being inconsistent with the laterportions of the Code.
Sithambarappillai v. Vinasitamby {ante, page 114) followed,
I
N this action plaintiff prayed that the defendant may be orderedto deliver to him three cases of tortoise-shells belonging to
the plaintiff and wrongfully detained by the defendant, or to payto the plaintiff the value thereof. He prayed also for damages.
1895.
June 25 andJuly 9.
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Defendant claimed the goods as his own, bnt the District Jndgeentered a decree for plaintiff for the retnrn of the cases, “ and in“ default of delivery the defendant do pay to the plaintiff the value“ thereof, namely, the sum of Rs. 9,000,” and Rs. 900 as damages.
On appeal, Layard, A.-Q. (with him Domhorst, Morgan,Dumbleton, and Van Langenberg), appeared for the defendantappellant.
Ramanathan, S.-G. (with him Sampayo and Senathi Raja),for plaintiff respondent.
The Supreme Court affirmed the judgment of the Court belowon the merits, but amended the decree by striking out the words“ and in default of delivery the defendant do pay to the plaintiff“ the value thereof, namely, the sum of Rs. 9,000.”
Cur. adv. vult.
9th July, 1895. Bonsbr, C.J.—
The plaintiff is entitled to a decree for the delivery up of thesegoods.
I observe that the decree, after ordering the delivery of the threechests, proceeds thus: “ and in default of delivery the defendant do“ pay to the plaintiff the valuethereof,namely,the sum of Rs.9,000.”As we held yesterday in the Jaffna jewel case (Sithambarap-pillai v. Vinasitamby, reported ante, p. 114), this is not a correctform of decree, for it gives the defendant the option of deliveringthe goods or paying their value. This is in accordance with theEnglish practice in actions of detinue, but it does not appear tobe proper in an action rei virtdicatio. The object of that actionis to recover the specific property. Sections 320-322 of the CivilProcedure Code show how a decree for a specific movable is tobe executed. The Conrt will issue on the plaintiff’s application awrit in form No. 62 in the second schedule. Armed with this writthe Fiscal is to seize the movable if the judgment-debtor does notdeliver it up on demand. If the Fiscal is unable to execute thiswrit he makes a return to the Court accordingly, and then theCourt, on the application of the plaintiff, will order a second writ toissue for seizure and sale of the judgment-debtor’s property, or awarrant of arrest of his body, or both. The amount of moneyfor which the Becond writ is to issue is to be “ the amount of pecuni-“ ary loss, as nearly as the Court can estimate it, which is occasioned“to the judgment-creditor by reason of the judgment-debtor’s“ default in making delivery, and which the Court shall award by“ way of compensation to the judgment-creditor by the order“ directing the writ to issue."
It will be seen that this gives no option to the judgment-debtorto retain the goods on paying the value. The Fiscal is to do hisbeBt to obtain delivery of the goods, and it is only in the event of
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his being unable to obtain such delivery that compensation is to 1895.be awarded to the plaintiff, and this compensation is not to be bonses, c.J.awarded by the decree, but by the order which directs the secondwrit to issue.
This procedure is in accordance with the Roman-Dutch practice(Voet VI., 1, 30-34).
A difficulty is raised, however, by section 191 of the CivilProcedure Code, which provides that “ when the action is for“ movable property, if the decree be for the delivery of such“ property, it shall also state the amount of money to be paid as an“ alternative if delivery cannot be had.” But the words “ if deli-“ very cannot be had ” do not afford any foundation for such adecree as was made in the present case. They cannot be read asthough they were “ if the defendant declines to give up the“ property.”
The explanation is probably this: section 191 is taken bodilyfrom the Indian Civil Procedure Code, being there section 208,whereas sections 320-322 have no counterpart in the Indian Code.
Even according to the English practice there should have beena finding as to the value of each chest. For the defendant mighthave made away with one of them and be willing to give up theothers. But I am inclined to think that section 191 must bedisregarded as being inconsistent with the later portions of theOrdinance, and inapplicable to an action rei vindicatio.
The procedure laid down in sections 320-322 seems to be inaccordance with the Roman-Dutch Law and practice, according towhich the question of compensation would only be assessed afterit had been ascertained that the property could not be restored.
Verum si ex adverso rei restituendoe facultatem reus non habeatvidendum an dolo ac culpa ejus an casu id contigerit (Voet VI., 1,
32). The amount of compensation varied according to the conductof the defendant, for, as Voet goes on to state, if the defendant hadceased to possess dolo, he must pay the value sworn to by theplaintiff ; whereas if he was guilty only of culpa he paid the actualvalue, not the value ex affectione vindicantis. If the loss were acci-dental in some cases he would not be liable to make good the value.
The decree therefore should be varied by striking out the wordsto which I have referred.
Form No. 62 gives no direction as to levying the costs of theaction, but there is no reason why a separate writ should not beissued for the damages and costs, together with the writ fordelivery.
Brownk, A.J., concurred.