Gurusamy Pulle V. Meera Lebbe

1914 Present: Pereira J. and Ennis J.

GURUSAMY PULLE v. MEERA LEBBE et al.

81-D. C. (Inty.) Chilaw, 3,888.

Fiscal's sale-Sale in execution-A seizure under an old time-expired writ cannot be availed of for sale in execution under a new writ- Fiscal or execution-creditor to move for extension of time if sale cannot be carried out within time allowed-Inherent power of Court to extend time.

In the case of every writ issued on an order made on an application under section 224 of the Civil Procedure Code there should be a seizure. A seizure under an older time-expired writ cannot be availed of for the purposes of execution.

When a writ cannot be executed within the time allowed for execution by the Court, the proper course is for the Fiscal or the execution-creditor to move for and obtain an extension of time rather than for the Fiscal to return the writ to Court and to secure a re-issue thereof.

The Court has an inherent power to extend the time fixed for the execution of its own process.

APPEAL from a judgment of the District Judge of Chilaw (W. R. B. Carbery, Esq.).

In this case one Sina Wana Panjawarana Pulle sued the present petitioners, (1) Kawenna Segu Meera Lebbe and his wife (2) Path-umma Natchia, upon a promissory note. Decree absolute was entered against them with costs on April 3, 1908. On April 14, 1908, the plaintiff moved for and got out writ. On June 9, 1908, writ was returned to Court, with the report that no property was pointed out.

On July 21, 1908, the plaintiff moved for a re-issue of the writ, which was allowed on fresh stamps. Nothing further appears to have been done until September 20, 1911, when Mr. Pandittesekera filed his proxy as proctor for S. W. Gurusamy Pulle, the present (respondent) appellant, his petition, and affidavit, together with a deed of assignment No. 1,386, and moved for an interlocutory order, in terms of section 377 (b) of the Code, on the petitioners to show cause why Gurusamy Pulle should not be substituted plaintiff in place of the original plaintiff Panjawarana Pulle.

This order nisi appears to have been issued and re-issued several times with negative results, until on April 24, 1913, Mr. Pandittesekere filed an affidavit from R. M. M. V. Venaithilan Chetty, the attorney of Gurusamy Pulle, and moved that the order nisi be affixed to the last known place of residence of the two judgment-debtors (present petitioners-respondents). This was allowed. On

May 21, 1913, the order nisi was reported served on them by substituted service-they were absent-and the order nisi was made absolute. On May 29. 1918, the first petitioner filed an affidavit, and moved that decree may not be executed until an inquiry is held into the matter referred to in the affidavit. On this the Court made order. " Affidavit insufficiently stamped." That was the only order made. On July 17, 1913, the substituted plaintiff (now respondent) filed his bill payable by the judgment-debtors, and issued notice of taxation for September 19, 1913. Notice of taxation was served on both.

On December 5, 1913, Mr. Pandittesekera, for the substituted plaintiff, applied for writ, and moved that substituted plaintiff's taxed costs be added to the amount of the writ. This was allowed on fresh stamps.

Writ issued on January 17, 1914, and under this writ the Deputy Fiscal sold certain lands belonging to the judgment-debtor, the sale realizing Rs. 2,140. On April 1, 1914, Mr. Storer filed proxy from the judgment-debtors and their petition and affidavit, and moved for an order nisi against the substituted plaintiff-respondent as prayed for in the petition, in terms of section 344 and section 377 of the Civil Procedure Code.

The prayer of the petitioners in their petition was for an order nisi on the respondent to show cause why the writ issued in this case should not be recalled and all proceedings in execution there under (including the sale) be set aside and declared

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