The Attorney General V. Appuhamy

Present: Lascelles C.J. and Ennis J.

THE ATTORNEY-GENERAL v. APPUHAMY.

110-D. G. Colombo, 32,594.

Stamp duty-Application for execution of decree-Not liable to stamp duty.

An application for the execution of a decree under section 224 of the Civil Procedure Code is not liable to stamp duty.

THIS was an appeal from the following order of the District Judge of Colombo (H. A. Loos, Esq.): -

The decree-holder in this case has applied for execution of the decree in his favour (according to the usual practice which has obtained in this Court and probably in every other Court in this Island since the coming into operation of "The Civil Procedure Code, 1889") in the form No. 42 appearing in the second schedule to the Code.

At the foot of form No. 42 there is a form of declaration given to the effect that what is stated in the application for execution is true to the best of the information and belief of the applicant, who, according to the form No..42, would be the party in whose favour the decree sought to be executed stood.

In the present case the application for execution is signed by the decree-holder's proctor. Section 224 of the Code permits of the application for execution being signed by the applicant or his proctor, so. that, on the face of it, the present application is quite in accordance with the requirements of section 224, and follows the form No. 42. The application, however, bears no stamp. So far as I am aware, or have been able to ascertain, such applications have never been stamped, but in this case the Attorney-General has moved for an order on the decree-holder to stamp the declaration made by his proctor at the foot of the application for execution of the decree in accordance with the provisions of item 2 of Part I. of Schedule B to the Stamp Ordinance, No. 22 of 1909.

The proctor of the decree-holder contends that it has never been the practice to stamp such declaration, and furthermore, that no such declaration is necessary or required by section 224 of the Code, under which the application for execution is made. Crown Counsel Akbar, who appeared for the Attorney-General, contended that, according to the form No. 42. referred to above, it was necessary that the application for execution should be supported by the declaration in question, and he relied on the judgment of Grenier J., reported in 2 Appeal Court Reports 130, in support of that contention; but he maintained further that the written application itself, even without the form of declaration at the foot, is in the nature of a declaration, and should accordingly be stamped as a declaration, and in support of that contention he cited the case of Queen Empress v. Bapuji Dayaram.1

1 (1886) I. L. R. 10 Bom. 288.

He relied on the latter case on the assumption that section 224 of our Code is practically identical with section 235 of the Indian Code of Civil Procedure; but the two sections differ on a material point, for while the Indian Code requires the application for execution to be verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, our Code contains no such requirement.

The ruling in Queen Empress v. Bapuji Dayaram 1 was based on the fact that the application for execution under the Indian Code must be verified by the applicant, so that I do not think that that decision can be regarded as an authority in support of the contention that the application for execution is in itself a " declaration " such as is contemplated by the Stamp Ordinance. Section 221 of our Code does not indicate in any way that the written application for execution should be verified in any way, and I cannot believe that the Legislature intended that the form No. 42 should be the medium of enacting an important provision, which might so much more forcibly and appropriately have been embodied in section 224. It is an important provis

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