RAMEN CHETTY v. FREDERICK APPUHAMI.

Present: The Hon. Mr. A. G. Lascelles, Acting Chief Justice, and
Mr. Justice Wendt.

RAMEN CHETTY v. FREDERICK APPUHAMI.

D. C., Colombo, 22,461.

Action on c decree-Disallowance of application for writ-Res judicata-Civil Procedure Code, ss, 217, 223, and 337.

It is not open to a person who has obtained a decree of a competent Court to maintain a separate action on such decree. The only course open to such person is to enforce the decree in manner
provided by the Civil Procedure Code.

Tambi Marikar Wappu Marikar v. Nainama Nachia. (1 Bal, 160) disapproved.

IN September, 1899, the plaintiff obtained a decree against the defendant for Rs. 7,410.14 in case No. 12,955, D. C, Colombo. Writ was issued, but it was returned unexecuted. The plaintiff

on the 1st September, 1905, made an application for reissue of writ, but the application was disallowed on the ground that the plaintiff had not used due diligence on the last preceding application to procure complete satisfaction of the decree. The plaintiff did not appeal against this order, but instituted the present action on the original decree. The District Judge (J. R. Weinman, Esq.) dismissed the action, holding that the refusal to reissue execution in the previous action (No. 12,955) was a bar to the present action. The plaintiff appealed.

F. M. de Saram, for plaintiff, appellant.-It has been held by this Court that an action of this sort is maintainable. The case reported in 1 Bal. 106 is exactly in point. In cases reported in 8 S. C. C. 100 and 2 C. L. R. 208 it has been held that assignees of decrees could sue on their decrees. Now, assignees cannot have any greater rights than their assignors had. It therefore follows that their assignors, that is to say judgment-creditors, could sue on their decrees. The provisions of the Civil Procedure Code have not altered the common law rights of an individual to institute an action on a decree. The Code merely enacts the procedure to be followed in executing a decree. Under section 337 of the Code a judgment is prescribed in ten years, and section 347 of the Code requires notice to be issued to the judgment-debtor, where application for execution is made after the lapse of one year between the date of decree and the application for its execution. The judgment creates a debt, for nonpayment of which an action can be brought on it.

Walter Pereira, K.C. (Samarawickreme with him), for defendant, respondent.-The effect of allowing an action of this sort will be to nullify all the provisions made in the Code to prevent judgment-debtors being unnecessarily harassed. It has been held in India that in Courts regulated by the Civil Procedure Code the only way in which a decree could be enforced is in the manner provided for by the Code, and not by action on the decree. The cases in point are collected and cited with approval in 8 Bombay 1. The Privy Council has taken the same view (26 W. R. 82). The cases reported in 8 S. C. C. 100 and 11 C. L. R. 208 are distinguishable, but all that' need be said here is that this point was not raised or considered in those cases.

De Saram in reply.

Cur. adv. vult.

12th June, 1906. LASCELLES A.C.J.-

This is an appeal from a decision of the District Judge of Colombo that it was not competent for a decree-holder to bring an action upon the decree to enforce his debt.

The plaintiff in action No 12,995 obtained judgment for Rs. 7,410.14 on the 21st September, 1899. Writ was issued on the 29th September and subsequently reissued several times.

Finally, on the 1st September, 1905, an application to reissue execution was disallowed on the ground that the Court was not satisfied that due diligence was used on the last preceding application to procure satisfaction of the decree. The plaintiff now brings his action upon the decree. The present appeal is from the dismissal of the action by the District Judge.

The general princ

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