124-NLR-NLR-V-30-CARUPPEN-CHETTY-v.-ABEYRATNE.pdf
( 444 )
1929
Present: Lyall Grant and Akbar JJ.
CARUPPEN .CHETTY v. ABEYRATNE.
6—DO (Inty.) Colombo, 10,468.
Decree—Satisfaction of judgment by pro-note—Certification of payment—Right of judgment-debtor.
Where a judgment-creditor has accepted a promissory notein satisfaction of his debt, the judgment-debtor is not entitledto have satisfaction of the decree entered up in the absence ofproof that the note has been met at maturity.
j^PPEAL from an order of the District Judge of C.olombo.
Keuneman, for appellant.
March 14, 1929. Lyall Grant J.—
The plaintiff-appellant in this case, a Chetty, obtained onFebruary 5, 1924, a decree on a promissory note against thedefendant-respondent for Rs. 1,623*75, with interest and costs.
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After an unsuccessful attempt to recover the sum by executionagainst the defendant’s property, he obtained a warrant for thearrest of the judgment-debtor on June 16, 1924. The returnable.date was June 16, 1925. .On that date the Deputy Fiscal returned.the warrant to Court with the endorsement that the defendantwas not to be found. On June 26, 1925, the plaintiff applied far areissue of the writ. Nothing seems to have happened on thisapplication, and further application was made on June 30, 1928.Owing to lapse of time an affidavit was required and notice issuedon the defendant.
The defendant appeared and led evidence to show that thejudgment-debt had been satisfied.
Before ’considering the evidence led on this question I wouldrefer again to the journal entries in the case.
On September 2, 1924, the defendant appeared by Proctor andfiled an affidavit and moved for notice on the plaintiff to show causewhy satisfaction of decree should not be entered and for the recallof the warrant of arrest.
Notice to the plaintiff was issued on September 11, 1924. Thereturn of the Fiscal shows that he was not to be found as hewas said to have gone to India. Notice was reissued three orfour times, and the last journal entry in this connection onDecember 2, 1924, reads “ case called, no steps taken. No order.”
The affidavit filed on behalf of the defendant, after narratingthe fact that judgment was entered, stated that “ The plaintiffeventually took out a warrant of arrest and thereafter the plaintiffin full satisfaction of the claims and costs against me in the saidcase took a promissory note for Bs. 1,800 from one H. W. Boyagodaand discharged me. The plaintiff promised to enter satisfaction-of decree and recall the said w^frant but has not done so yet.”
On December 12, 1928, evidence was led by the defendant insupport of the statement made in the affidavit and counter-' evidence was led on behalf of the plaintiff.
The learned District Judge has believed the defendant’s evidenceand has ordered satisfaction to be entered of record with costsof the inquiry to the defendant.
I will deal later with the question whether the mere • factthat a decree holder on a promissory note has accepted a bill insatisfaction of his claim could entitle the court to order satisfactionto-be entered of record without any proof that the bill had beenmet at maturity.
Apart from this question of law, I am bound to say that, in my•opinion, the evidence led on behalf of the defendant to prove thealleged granting of the note is extremely unsatisfactory and isby no means the best evidence.
1929
LyallGrant J.
CarupptnChetty v.Abeyratne
( 446 )
1929
LyaixGrant J.
CaruppenChetty v. .Abeyratne
He has not called the alleged grantor of the note. The Proctor,.Mr. E. ■ A. de Silva, whom he called as an eyewitness to thegranting of the promissory note, not only denied that he saw thenote given, but says that he did not see the plaintiff in the officethat day. The only evidence which corroborates the plaintiff isthat of one Selvam Joseph, who goes so far in supporting defendant’sevidence as to say that Mr. de Silva was present and saw what wasgoing on. In view of Mr. de Silva’s evidence, the veracity of thedefendant and his other witness is open to grave suspicion.
The plaintiff’s kanakapulle, who is alleged by the defendantto have been present at his arrest and to have taken a part in the-bill transaction, denies the whole occurrence and produces hisaccount books to show that there was no entry made of any suchnote.
do not think that the defendant has discharged the onus ofproof which lies upon him when attempting to show that a billwas given to satisfy the decree which existed in favour of thedecree holder.
There was a heavy onus on the defendant; he has not calledthe best evidence, and I am bound to say I entirely disbelievethe evidence which he has called in so far as it helps his case.
I rather suspect that he submitted a false affidavit when heheard that the plaintiff had gone to India for the purpose of havingthe warrant of arrest withdrawn; that he took good care thatnotice was not served on the plaintiff; that when matters came to ahead and he was forced to support his affidavit he did the besthe could with the aid of one complacent witness.
Apart from the question of proof, section 349 of the CivilProcedure Code provides that a judgment-debtor asking the Courtto certify satisfaction of judgment must do so by petition. InBan Menika Etana v. Appuhamy1 Schneider J. pointed out thatit was settled law that the procedure must be strictly followedbefore payment will be recognized.
I cannot find that in the present case this procedure has beenfollowed.
Further, there is a strong presumption that where a bill or noteis given by way of payment, the payment is conditional on thenote or the bill being realized. {PaUmiappa Chetty v. SaminathanChetty et al.* and the cases referred to in Byles on Bills, c. XX111.)No attempt has been made in this case to prove such realization.
The appeal is allowed and the original judgment revived.
Akbar J.—I agree.
1 24 .V. L. R. 357.
Appeal allowed,.215 N. L. R. 161.