DE SILVA v. WIJEYESEKERE

056-NLR-NLR-V-36-DE-SILVA-v.-WIJEYESEKERE.pdf


GARVIN SPJ.—De Silva v. Wijeyesekere.
287
[In Revision.]
1934Present: Garvin S.FJ. and Akbar J.
DE SILVA v. WIJEYESEKERE
C. Colombo, 54,304
Decree—Application for execution—Entering of formal decree—Copy of decree—Stamp Ordinance, No. 22 of 1909, sch. B., Part II.
An application for the execution of a decree should .not be alloweduntil formal decree has been entered in the case and the applicant hasobtained a copy of the decree.
A
PPLICATION to revise an order made by the District Judge ofColombo.
Petitioner in person in support.
Rajapakse, for plaintiff, respondent.
December 20, 1934. Garvin S.P.J.—
This is an application to revise an order made by the District Court ofColombo on September 3, 1934, disallowing an application .made by thepresent petitioner that a certain writ of execution issued in this action berecalled. Judgment was entered in the case on August 21, 1934, and it issaid that that judgment was entered at 3.55 p.m. on that day. At4.20 p.m. an application was filed on behalf of the plaintiff for executionof the decree. That application, which was made ex parte, was allowed.On the very next day after that judgment was entered, that is, on August22, the petitioner filed a petition of appeal and filed also a motion bywhich he sought to have the order allowing the writ set aside. Notice ofthe motion was issued. The matter was heard on September 3, 1934, andthe petitioner’s motion disallowed.
A preliminary objection is taken to the hearing of this application forrevision on the ground that the petitioner should have appealed from theorder. In ordinary circumstances it would clearly have been the duty ofthe party affected by such an order to avail himself of the right whichthe law gives him to seek relief by way of appeal to this Court, and in the
288" GARVIN S-P^Jj—-^De Silva v. Wijeyesekere.
event of his failing to do so th^l would, in the absence of special circum-stances, be a sufficient ground -for; refusing to exercise the special powervested in this Court to revise &qrd£rs of subordinate Courts. But I thinkthat in this case the petitioner has shown sufficient reasons by way ofexplanation of his omission to appeal. I have already stated that thepetitioner filed a petition of appeal on August 22, 1934, the very next dayafter this judgment was entered. When this motion for the recall of thewrit was disallowed, the plaintiff shortly thereafter and before the timefor appealing had elapsed, moved for an order of the Court declaring thatthe appeal entered by the" petitioner had abated. That motion wasallowed on September 14, 1934. So that at a time when the period-allowed for the filing of an appeal from the order made on September 3,1934, had not yet elapsed the Court, by its later order of September 14,left the petitioner in the position of a person whose appeal had abated.Manifestly to have presented an appeal from the order made in thisincidental matter would have been futile, when the right to appeal fromthe principal judgment was held to have ceased. That order of abate-ment unless and until it was set aside, placed the petitioner in a positionof great disadvantage in regard to this question of the issue of the writ.Had he succeeded in his motion to have the order allowing it set asidethe advantage he would have obtained is that thereafter any applicationfor the execution of the decree would have to be made not under theprovisions of section 224, but under the provisions of section 763 inasmuchas any such application would then relate to the execution of a decreeunder appeal. In these circumstances the petitioner took every step toobtain relief from the order holding that his appeal had abated. * Hemoved this Court and then as a result of that proceeding he went back tothe District Court. Failing to obtain relief he came back to this Courtarid ultimately by the order of this Court made about October 25, 1934,he obtained the relief he sought. All proceedings had in the Court belowafter September 13, 1934, were set aside and the case remitted so that thismatter of the application for an order directing that the petitioner'sappeal abate should be dealt with after notice to him. On notice givento the petitioner the matter came up for hearing and the District Judgemade order holding that the appeal had not abated and directing that itbe forwarded to this Court to be dealt with in due course. The petitionerhas at last succeeded in winning back to the position of a person who hadfiled an appeal from this judgment as promptly as the very day after ithad been delivered.
For the foregoing reasons, I think that sufficieiit grounds have beenshown here by the petitioner for his omission to exercise his undoubtedright of appeal. It remains only to consider his complaint that the orderof the District Judge refusing his application to recall the writ was wrongand should not have been made.
The two grounds upon which it is urged that the order is wrong are:
that at the date of the application for execution and the order allowingthat application no decree had been entered, and (2) that no such appli-cation should have been allowed until the Court was satisfied that theapplicant had obtained a copy of the decree as required by the Stamp-Ordinance.
289
GARVIN SJ>c Silqa vi Wijeyesekere.
X-i;
Now, as to the first of these grounds, the question turns upon theinterpretation of sections 223, 224, 225 and the other relevant sections ofthe Civil Procedure Code, and also the form No. 42 in the schedule attachedto the Civil Procedure Code. Every one of these sections seems to con-template the existence of a decree and so does the form No. 42. Section223 requires that the Fiscal must be put in motion by an application forthe execution of the decree sought to be enforced to the Court, whichentered the decree. Section 224 prescribes the form of the application,which is again referred to as an application for the execution of the decreeand the applicant is required in that application to state certain particulars,among them "the date of the decree”. Manifestly it is impossible togive the date of the decree until a decree has been drawn up, signed, andis in existence. Section 225 seems to place upon the Court the duty evenwhen such an application has been made to examine the record, if need be,for the purpose of satisfying itself that the application is substantially inconformity with the provisions of section 224 and that the applicant isentitle to execution of the decree. Now the decree referred to is, I think,clearly the formal decree which has to be drawn up in conformity withthe judgment and signed by the Judge—see section. 188. There may,of course, be a context in which it may be necessary to interpret the word“ decree ” somewhat differently, as for instance in the case of Perera v.Fernando where the Court had to consider the meaning to be attachedto the word ** decree ” as it appears in sections 206 and 207 of the Code.One of the questions in that case was whether the plea of res judicatacould be sustained where no formal decree had been. entered, and forreasons, with which I would respectfully state I agree, the Court held thathaving regard to the subject and the context it was not necessary to givethe word “ decree ” the construction which, in my judgment, it bears insections 223, 224, &c. This judgment has been cited for a somewhatdifferent purpose. It is said that it holds that a decree whenever entereddates back to the date of the judgment. I am unable, however, to seethat it can be relied on as a decision for holding that there was here adecree when we know as a fact that no such decree had been entered oras an excuse for entering in the application for execution a date, whichwas represented to be the date of the decree, which we now know hadnever been entered at that time.
Our attention was also drawn to the case of Rudd Abdul Rahaman'which was relied upon in support of the contention that notwithstandingthat no decree had been entered an application for execution might bemade immediately after judgment and be allowed. But the facts of thatcase are clearly different. It is true that as in this case the application forexecution bore a date anterior to the date upon which the decree wasentered, but as a matter of fact the application was held up and was notallowed by the Court until the formal decree had been duly entered andsigned. In point of fact, therefore, the Court did not allow executionuntil the decree had been entered. That being so, the irregularity in theapplication in that it was tendered before the decree was entered wasnaturally not regarded as vitiating the proceedings. I cannot see that117 N. L. R. 300.*85 N. L. R. 890.
36/22
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GARVIN S.P.J.—De Silva v. Wijeyesekere.
the case of Rudd v. Abdul Rahaman (supra) is an authority for the proposi-tion that an order may be made allowing an application for executionbefore a formal decree has been entered in the case.
Turning then to the second of the two objections taken, I think thatthat objection too is entitled to succeed. It is based upon a provision inschedule B, part II. of the Stamp Ordinance, headed “ Containing theDuties on Law proceedings, ” under the sub-head “ Miscellaneous Thematerial words are as follows:—“No party shall be allowed to take anyproceedings on or by virtue of any decree or judgment without firsttaking a copy thereof”. Having for the purpose of revenue directedthat every copy of a decree shall bear a stamp, the legislature has pro-ceeded in the paragraph just referred to to provide against the evasion ofstamp duty by the simple expedient of not taking out copies of the decree.It has therefore directed that once a decree has been entered no partyshould be permitted to take any proceedings on or by virtue of such adecree without first taking a copy thereof. An application for executionof a decree is manifestly a proceeding taken on or by virtue of a decree.It seems to me therefore that unless the provision in the Stamp Ordinanceis to be rendered nugatory we must hold that this proceeding, which isclearly a proceeding on or by virtue of a decree, should not have beenallowed at the instance of the plaintiff in this action where admittedly hehad not at the time taken out a copy of the decree. It is to be noted thatin the case of Rudd v. Abdul Rahaman (supra) hereinbefore referred tothis aspect of the matter does not appear to have been noticed, presumablyfor the reason that no argument based upon this provision appears to havebeen addressed to the Court.
I think therefore that the order complained of was wrong and must forboth the grounds considered above be held to be bad. Our attentionhowever, has been drawn to the circumstance that, following upon thisorder, writ issued and that that writ has been executed by the ejectmentof- the petitioner from the premises in question. It has been urged thatthe reversal of the order might create for the parties and others, who arenot parties to the proceedings, a situation of very great difficulty. Butthe petitioner very properly said he was perfectly willing to agree not toenter the premises and to any modification of the order which will permitthe state of things now existing in respect of the occupation of thosepremises to continue. In view of the agreement of the petitioner, wewould direct, while setting aside the order complained of and inordering the recall of the writ, that the action taken thereon in so far asit relates to the ejectment of the petitioner shall not be interferedwith.
The petitioner is entitled to the costs of this application and also of hismotion of September 3, 1934. which was refused by the Judge.
Akbar J.—I agree.
Application allowed.