Silva Et Al. V. Singho Et Al.,

Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice,
and Mr. Justice Wood Renton.

SILVA et al. v. SINGHO et al.

D. C, Matara, 3,009.

" Decree for the payment of money "-Mortgage decree-Due diligence Civil Procedure Code, s. 337.

A decree in a mortgage action for the payment of money due on the mortgage bond and in default thereof for the sale of the mort. gaged property, and the realization of any balance of the debt still remaining unpaid after such sale, is a " decree for the payment of money " within the meaning of section 337, Civil Procedure Code.

Writ was issued in this case in January, 1908; under it the mortgaged lands and also some other unmortgaged lands of the judgment-debtor were sold. In October, 1909, plaintiffs made an application for the re-issue of the writ for the unsatisfied portion of the decree, and filed an affidavit explaining the delay to have been due to the difficulty of finding out other properties of the debtor.

Held, that there was no lack of due diligence on the part of the plaintiffs, and that they were entitled to have the writ re-issued.

THE facts are fully set out in the judgment of Hutchinson C.J. Bawa, for the plaintiffs, appellants.

No appearance for the respondents.

Cur. adv. vult.

May 2, 1910. HUTCHINSON C.J.-

The plaintiffs got judgment on March 25, 1903, on a mortgage bond. The decree is in the form which is usual m such cases; it decrees that the defendants do pay to the plaintiffs the debt and interest and costs within seven days; in default the specially mortgaged property (described) is to be sold and the proceeds applied in or towards payment; and if the proceeds are not enough, the defendants are to pay to the plaintiffs the deficiency.

The first application for execution was made in July, 1906; the District Court refused it because of the delay, but this Court (see 10 N. L. R. 312) allowed it, and the writ was issued in January, 1908; under it the mortgaged lands and also some unmortgaged lands of the second defendant were sold, but the proceeds of sale were not enough to pay the debt, and a balance is still due. The plaintiffs then in October, 1909, made the present application, which is for re-issue of the writ, and filed an affidavit explaining the delay to have been due to the difficulty of finding out other unmortgaged properties of the defendants. The District Court refused.

the application on the ground that the plaintiffs did not exercise due diligence on the last issue of the writ; the Judge observed that after the sale of the mortgaged land the plaintiffs did nothing for a year and a half, and that " due diligence " requires that if the writ is unsatisfied the debtor shall be examined and, if necessary, committed to prison, and that nothing of that kind had been done. The appellants first contended that the decree in this case is not " a decree for the payment of money, " and that therefore the requirement of section 337 of the Civil Procedure Code as to " due diligence " does not apply. I have no doubt that it is a decree for payment of money. It begins by ordering the defendants to pay the whole debt. It is true that it directs that in default of payment it is to be enforced in a particular manner in the first instance, viz., by sale of the mortgaged property; but none the less it has decreed the payment. I agree on this point with Don Jacovis v. Perera;[1 (1906) 9 N. L. R. 166 ; 3 Bed. 118.] the facts in that case are not fully reported, but I have seen the record; the decree was in 1892, and was like the one in the present case; writ was issued in 1893, not for sale of the mortgaged property, but against the debtor's property generally; the plaintiff obtained an order for its re-issue in 1902, but did not actually re-issue it, and took no further steps till 1906. The Court held that the decree was for payment of money, and apparently thought that on the facts i

Click Here to Read the rest of this document