036-NLR-NLR-V-14-DOLOSWALA-v.-AMARISA-et-al.pdf
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Present: Lascelles A.C.J. and Van Langenberg A,J.DOLOSWALA v. AMARISA et al.
24—D. C. Ratnapura, 952.
Refusal of application for re-issue of writ—Res judicata.
An application in November, 1910, for a notice on the judgment-debtor to show cause why writ should not be re-issued to recoverthe balance due was refused, as the “ last step was taken asfar back as 1905 and nothing done since,” Subsequently thejudgment-creditor filed another application explaining what stepshe had taken to recover his money.
Held, that it was competent for the Judge to entertain thesubsequent application.
An order passed by a Court rejecting an application for executionof a decree on the ground that the period allowed by law forexecution had expired is not an adjudication within the rule ofres judicata .
'J'HE facts are fully set out in the judgment.
A. St. V. Jayewardene, for the defendants, appellants.—TheCourt having refused the application of November 15, 1910, hadno power to entertain the subsequent application for issue of writ.The rule as to res judicata applies to applications for issue of writ.Ensohamy v. Maricar.1 The plaintiff should have appealed againstthe order refusing his first application. Bandey Karim v. Bundo-padhya ;4 see also Coventry v. Tulshi Pershad Narayan 'Singh.'-1
The second application if allowed would have .he effect ofvacating the first order of refusal. It has been held that a Courthas no power to vacate its own order (Ramasamypulle v. De Silva*).
No appearance tor respondent.
Cur. adv. yult.
March 14, 1911. Van Langenberg A.J.—
On December 6, 1900, the plaintiff obtained a decree against thedefendant for Rs. 600 and costs. On March 20, 1901, writ wasissued and a small sum was recovered. On November 15, 1910,the plaintiff moved for a notice on the defendant to show cause whythe writ should not be re-issued to recover die balance due, whenthe learned Judge made the following order : “ Refused, last stephaving been taken as far back as 1905 and nothing done since
3 (1904) 31 Cal. 822.
* (1909) 12 -V. L. R. 298; 1 Cur. L. R. 226.
Vol, XIV.5
1 (1908) 11 A L. R. 225.
1 (1882) 1. L. R. 9 Cal. 65.
p
Hj. X. A 0:1348 01/49)
Mar. 14,1911
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Mar. 14, lull The learned Judge, while making this order, had no material what-yAN ever before'him to show what action the plaintiff had taken sinceLanomn-the first issue of thewrit. On December 2, 1910, the plaintiff filed
BERG A‘ 'another applicationfor writ, and suppprted it with an affidavit
Doiotnoalaexplaining what steps he had taken to recover his money. The
Amarwtdefendant receivednotice of this application, and after hearing
both sides the District Judge recorded that he was satisfied thatthe plaintiff had taken all steps possible to recover the balance due,and he allowed the application. The defendant has appealed. Itwas urged for him that as the learned District Judge’s order ofNovember 15, 1910, did not reserve to the plaintiff the right to_renew his application for writ, it was not competent for the Judgeto entertain the subsequent application made by the plaintiff. Itseems to me that the point is covered by authority. In the case ofThe Delhi and London Bank, Limited, v. Orchard1 it was held by thePrivy Council that an order passed by a Court rejecting an applica-tion for execution of a decree on the ground that the period allowedby law for execution had expired was not an adjudication within therule of res judicata. I may also refer to Hurrosoondary Dassee \Jugobundhoo Dutt:1 I think that the objection is not a sound one.On the merits the plaintiff’s affidavit being uncontradicted., 1 agreewith the learned District Judge that the writ should issue. I woulddismiss the appeal with costs.
Lascelles A.C.J.—I agree.
Appeal dismissed.
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1 {1877) 1. 1, R, -3 Cal. 47.
* {1880) I. i?t G Cal 208,