1917 Present : Wood Renton C.J. and De Sampayo J.

NAINA v. SEDEMBRAM.

85-D. C. Colombo, 45,538.

    Adjustment of decree-Payment of a portion in pursuance of adjustment -Agreement to accept the balance in monthly instalments-Action for damages for wrongful seizure-Civil Procedure Code, ss. 349, 224, 225.

A judgment creditor sued out execution for the entire decree and seized property of the debtor, concealing from the Court tb.8 fact of an adjustment of the decree, whereby he agreed to accept an immediate payment of Rs. 2,000 and the balance by equal monthly instalments. The Rs. 2,000 were paid in pursuance of the agreement. Neither the payment nor adjustment was certified when execution was issued ; but they were certified later. Under the adjustment the creditor was not entitled to apply for execution at the time he did apply.

Held, that the creditor was liable in damages for wrongful seizure. The certification of the adjustment and the payment of the first instalment related back to the date on which the adjustment and payment were made.

To procure, to the prejudice of any one, maliciously and either by expressio falsi or suppressio veri the issue of legal process, which was perfectly justifiable on the materials before the Court, is an actionable wrong.

THE facts are set out in the judgment.

A. St. V. Jayewardene, for defendant, appellant.

Bawa, K. C., and Bartholomeusz, for plaintiff, respondent.

Cur. adv. vult.

September 28, 1917. WOOD RENTON C.J.-

This, case raises an interesting point of law. The defendant obtained judgment against the plaintiff in 40-D. C. Colombo No. 42,619, and decree was entered up in his favour on November 17, 1915, the plaintiff being allowed time to pay the claim and cost till January 15, 1916. On the latter date the parties came to all adjustment of the litigation. It was agreed that the plaintiff should make an immediate payment of Rs. 2,000 to the defendant, and that the defendant should accept payment of the balance due in equal monthly instalments. In pursuance of this agreement, the plaintiff on January 15, 1916, paid, and the defendant accepted the first instalment of Rs. 2,000. Neither this payment nor the adjustment itself was at the time certified to the Court either by the decree-holder or by the judgment-debtor in compliance with the ' " provisions of section 349 of the Civil Procedure Code. On January 17 the defendant applied to the District Court for execution of the entire decree entered up in his favour in the case, making no mentior in his application of the adjustment arrived at on January 15, 1916 or of the payment of the first of the stipulated instalments by the judgment-debtor on the same day. Execution was allowed, and on January 24 the Fiscal, at the defendant's request, seized ir execution of the decree eight boats belonging to the plaintiff in the harbour of Colombo, as well as a sum of Rs. 10,000 deposited by him with Messrs. Shaw, Wallace & Co. as security for the due performance of the contract. On January 26 the plaintiff moved to have the adjustment of the decree in the case certified in terms of section 349 of the Civil Procedure Code. The District Judge, after inquiry, ordered this to be done, and his decision on the point was subsequently affirmed in appeal. The plaintiff now sues the defendant for damages, alleging that, as a result of the seizure above mentioned, he had forfeited his contract with Messrs. Shaw, Wallace & Co., and had lost the profits on his boats for a period of several days. The defendant in his answer pleaded that the plaintiff's action must fail, inasmuch as the alleged adjustment of the decree had not been certified under section 349 of the Code of Civil Procedure at the time when execution was applied for and issued. The learned District Judge has over-ruled this contention, and the defendant appeals.

In my opinion the decision of the District Judge is