074-NLR-NLR-V-23-CARRIM-v.-WAHID.pdf
( 270 )
1921*
Present: Bertram C.J. and Be Sampayo J.
CARRIM v. WAHID.
71—D. C. (Intp.) OaUe, 16,066.
Civil Procedure Code, ss. 224, 234, and 337.—Application for re-issue ofwrit—Due diligence—Effect of seizure of a decree—Rights ofjudgment-creditor to execute his decree not suspended—Refusal ofprevious application on ground that decree was seized—Subsequentapplication—Res judicata.
An inquiry as to whether due diligence had been used to procurecomplete satisfaction of the decree on the last preceding appli-. cation is not a condition precedent to the granting of a subsequentapplication under section 337.
The seizure of a decree under section 234 of the Code does notdeprive the execution-creditor of the right to execute the decree.All that the first paragraph of the section requires is that theproceeds of the decree* when executed, shall be applied in satis-faction of the seizure.
The refusal of an application for the issue of a writ on the groundthat the decree in the action had been seized by another creditorunder section 234 was held not to be a bar to a subsequent appli-cation for the issue of writ.
The provisions of section 224 of the Code as to reference toprevious applications for writ are merely directory.
I
N this action the plaintiff-respondent obtained judgment againstthe appellant for a sum of Rs. 1,671 • 25 legal interest and costs.
Decree was entered on May 31, 1918.
On June 7, 1918, the respondents took out writ which wasreturned to Court on January 16,1919, a sum of Rs. 820 * 15 havingbeen recovered thereon.
Again, on January 28,1919, writ was issued, and was returned toCourt on March 21,1919, a sum of Rs. 11*74 having been recovered.
On April 29,1919, the plaintiff-respondent’s proctor made a thirdapplication for the re-issue of the writ, but this application wasrefused by the learned Judge, on the ground that on March 14,1919,the decree, in favour of the plaintiff, had been seized by a creditorof his, and that an application had been allowed on that date foran order directing “ that the proceeds of the decree in this case beapplied in satisfaction of the judgment in claim case No. 2,381,
C. Galle.”
Thereafter, on February 17, 1921, the plaintiff’s proctor madethe application now in question to Jiave the writ re-issued, andover a year having elapsed since the previous application, a noticewas ordered under section 347 of the Civil Procedure Code.
( 271 )
1921.
Oarrim v.WalM
M. W. H. de Silva, for the appellant.
No appearance for the respondent.
October 11,1921. Bertram C.J.—
This is an appeal against an interlocutory order from the DistrictCourt of Galle. The order was an order directing thaissue of a writof execution. Mr. de Silva has taken a number Of points on appeal;the first of which is that it was not competent for the DistrictJudge to issue a writ of execution, inasmuch as his predecessor, twoyears previously, had declined to issue a writ on the ground thatthe decree in the action had been seized by another creditor undersection 234 of the Civil Procedure Code. Mr. de Silva maintainsthat under those circumstances the matter was res judicata.
That point is disposed of by the case of Doloswala v. Amarisa.1
The next point was that it did not appear in the record that theDistrict Judge had inquired whether due diligence had been usedto procure complete satisfaction of the decree on the last precedingapplication (see section 337). Certainly there is no mention of anysuch inquiry on the face of the record, but I do not think that it isthe intention of section 337 that such an inquiry should be a condi-tion precedent to the application of the section. The words inrespect of the matter and form are, I think, directory and notimperative. If we were of opinion that they were imperative, itwould be a question whether the last application in this case wasone which the creditor made and which was refused, or an appli-cation preceding that. With regard to the application which wasrefused, it is difficult to see what more diligence the creditor couldhave exercised.
Mr. de Silva makes a third point, that no reference to theprevious application was made as required by section 224 (/) of theCivil Procedure Code. This requirement is again directory0 Thelearned Judge had .all the facts before him, and I do not thinkthat the absence of this reference is material.
I come now to the last and most substantial point, and that isthat the seizure of a decree under section 234 suspends any remedyof the execution-creditor upon that decree. This was the groundof the refusal of the earlier application, which Mr. de Silva thinkswas a right refusal. I do not agree. I think that the learnedJudge has made a perfectly correct order. There is'nothing in thewords of the first paragraph of section 234 to deprive the execution-creditor of the right to execute the decree. All that the paragraph1 (1911) 14 N. L. R. m.
On this notioe being served on the appellant, he filed objectionsto the application being allowed, and inquiry into these objectionswas held, and the District Judge, T. B. Bussell, Esq., made orderallowing writ to issue. The defendant appealed.
1921.
Bebtbam
OJ.
Carrim v.Wahid
( 278 )
requires is that the proceeds of the decree, when executed, shall beapplied m satisfaction of the seizure. The second paragraph ofsection 234 relates to a case in which two decrees have bean recoveredin separate Courts, and any implication which may be sought to bedrawn from the words of that paragraph cannot be applied byanalogy to the first paragraph.
With regard to another case cited, 70 D. C. (Irity.), Galle,decided in this Court on September 28, 1921, that case can bedistinguished. In that case the order of the Court complained* ofpurported to vacate the previous order of the same Court. Theorder now appealed against does not purport to do anything ofthe kind. It merely follows Dolostoala v. Amariea.1 In myopinion, therefore, the appeal must be dismissed, with costs.
DaJ.—I agree.
Appeal dismissed.