078-NLR-NLR-V-16-PATHERUPPILLAI-v.-KANDAPPEN-et-al.pdf
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1913.
Present: Pereira J.
PATHEEUPPILLAI v. KANDAPPEN et ah114—C. R. Batticaloa, 15,605,
Re-issue of writ—Fresh seizure necessary.
A seizure of land under a writ of execution cannot be availedof for the purposes of a sale of the same land when, since theseizure, the writ has been returned to Court and re-issued.
There must be a fresh seizure for such sale. There is no pro-vision in the Civil Procedure Code for the re-isssue of process.Each, time execution for satisfaction of. a decree- is desired, applhcation should be made under section 224 and a writ issued. Awrit if re-issued on payment of the proper stamp duty, however,will have the same effect as a writ freshly issued.
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N this case writ was issued on June 1, 1911, returnable onDecember 1, 1911. The properties in question were seized,
under the writ in July, 1911. The firs# defendant died in October,1911. The writ was issued for a second time in January, 1912,without notice to the heirs of the deceased and without makingthem substituted defendants. The lands were sold in-June, 1912,and purchased by one Sathasivam, who deposited one-fourth oj8 theprice. The purchaser made default in paying the three-fourths.
The writ was issued for a third time in August, 1912, again withoutnotice to the heirs of the deceased. The properties were re-sold inOctober? 1912. The Fiscal reported that the sale was founded ona seizure made on July 29, 1912. There .was no seizure under thewrit issued in August, 1912.
The appellant (second defendant) moved that the sale be set-aside.
The learned District Judge (T. W. Roberts, Esq.) made thefollowing order: —
The property now sold was seized in July, 1911, before the firstdefendant died. It was advertised for sale under that seizure, andsold to one Sathasivam, the son of the first and second defendants, forRs. 355. He paid only one-fourth of the purchase amount. It thenbecame the duty of the Fiscal, after the writ re-issued, to sell theproperty without delay under the old seizure. He has in fact made asecond unnecessary seizure, and sold the property for Rs. 285. Thevaluation is Rs. 260. .It appears to me that the present sale is inreality a sale under the first seizure. The Code stringently enacts theprocedure on default, and the second seizure may rightly be struck outof consideration. This being so, under the Indian decisions quoted inBdtasingham's Civil Procedure Code it was unnecessary to implead
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anyone to represent the deceased iirst defendant, because the seizurewas previous to his death. This disposes of Mr. Nagapper’s firstargument.
The seoond is that there was no seizure made at any date when awrit 'was out. This would only apply to the second seizure of July 29,1912, which I consider deserves no attention. It is irrelevant to theearlier .seizure, at the date of which it is not disputed that writwas out.
Finally, no substantial loss is proved; the property has fetched itsvalue. The application is dismissed with costs.
1918.
Potheriip•pillai v.Rdndappev
The seoond defendant appealed.
Balasingham, for the appellant-.—The sale is bad, as the issue ofthe writ in August, 1912, was illegal. The first defendant was deadat the time, and his heirs should have been substituted as defendantsin his place before the writ was re-issued. The provisions of section341 of the Civil Procedure Code are very dear; it enacts that thelegal representative of the judgment-debtor should be made a partyon the record before writ is issued. See Omer v. Fernando,1 SheoBrasad v. Hira Lai.2
It has no doubt been held in India that where the property wasunder seizure at the time of the death of the debtor, the subsequentsale after debtor’s death is not invalid by reason of the fact thatno substitution was made. But that is no authority for holdingthat after the time allowed for the return of the writ had expiredthe writ could be issued again without making the legal represen-tative a party on the record. In such a case section 341 wouldapply.
A sale held under a writ which was illegally issued is bad.
The seizure under the first issue of writ could not support the saleunder the second issue of writ and under the third issue of writ.There should have been a new seizure every time the writ was issued.
No appearance for the respondent.
Cur. adv.. vult. •
May 9, 1913. Pereira J.—
In this case application was made by the appellant to cancel asale in execution of her property, not .on- the ground, as the District.Judge appears to have understood, of irregularity in the conductingof the sale, but on the ground of illegality in the procedure adopted.The application, I take it, was made under section 344 of the CivilProcedure Code. The question involved is whether a seizure ofland on a writ of execution can be availed of for the purposes of thesale of the same land on the same writ when, since the seizure, it-has been re-isBued after return to the Court. Now, it is clear thatour Civil Procedure Code makes no provision .whatever for there-issue of a writ, or, indeed, of any other process. Application for
'* (1918) 16N.L.R. 135.2 L L. R. 13 Att. 441.
IMS.
PbmhbLj.
Petherup-pitta* «.Kbndappon
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execution is made under section 224x and in making* this applicationit is provided that the applicant should state the result of previousapplications, if any, made for execution, and the amount of previouslevies, if any, clearly indicating that the application for executionis to be made as provided for by section 224, not only where a writis applied for in the first instance, but when a writ has once beenissued and the amount of the judgment partially recovered. But,where the application under section 224 is allowed, there is noprovision for the re-issye of an old writ, but the provision is for theissue of a writ in form No. 48 (see section 225, paragraph 8). TheLegislature, without proper appreciation, apparently, of the factthat there is no provision in the Code for the re-issue of writs, andthat therefore each time that execution is allowed the n'ecessarystamp duty should be paid by the applicant by duly stamping eachwrit taken out, and that there was hence no necessity for safe-guarding the revenue in the matter of the re-issue of the writs,provided in the Stamp Ordinance of 1800 that no writ should bere-issued without, as the provision has been construed by Wendt J.in the case of Palaniappa Chetty v. Samaadeen,1 payment afresh ofthe stamp duty required for a new writ. The same mistake hasunfortunately been repeated in the Stamp Ordinance of 1909; andwhile Layard C.J. was of opinion in the case already cited (Palani-appa Chetty v. Samaadeen *) that a writ once returned to Court couldnot be re-issued except in the circumstances mentioned in the StampOrdinance, I take it that in the case of Muttappa Chetty v.Femando i 2the Judges constituting the Court were of opinion that a writ mightin other circumstances as well be re-issued provided the stamp dutywas paid afresh; bull I understand them to mean that the re-issueof a writ was in any case to have the same effect as the issue of afresh writ. In view of the provisions of the Civil Procedure Code,which allow no re-issue of writs, there can be no doubt that thatmust be so. The only extension of those provisions resulting fromthose judgments in the case of Muttappa Chetty v. Fernando 2 is thatthe process-may differ in form. But its effect is left untouched.That being so, there must be a fresh seizure in the case of there-issue of a writ to justify a sale thereunder. In view, therefore,of section 841 of the Civil Procedure Code and the judgment of thisCourt in Omer v. Fernando 3 I allow the appeal with costs.
Appeal allowed.
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i (1805) 8 N. L. R. 826.2 (1802) 10 N. L. R. 180.
* (1913) 16 N. L. R. 186.