Muttu Raman Chetty V. Mohammadu

Present: Be Sampayo J. and Schneider A.J.

MUTTU RAMAN CHETTY et al. v. MOHAMMADU et al.

 144-D.  C. Kurunegala, 1,998.

Subsequent order-Civil Procedure Code, s. 337-Amendment of  decree- Mortgage   decree   is   decree   for   payment   of  money.

The " subsequent order " contemplated in section 337 (b) of the Civil Procedure Code is one which may be made under the provi­sions of sections 320, 322, 334, and 335 of the Code for the recovery by execution of a sum of money as damages fa default of compliance with the substantial decree either to deliver movable property or to do or abstain from doing some specified act.

A Court has no jurisdiction to amend or alter its decree, except in conformity   with   section   189,   Civil   Procedure   Code.

A mortgage decree is a decree for the payment of money within the   meaning   of   section   337,   Civil   Procedure   Code.

THE facts appear from the judgment.

A. Drieberg, for defendants, appellants.

Samarawickreme, for plaintiffs, respondents.

Cur. adv. vult.

March 17, 1919.    Schneider A.J.-

In this case, on December 15, 1902, a mortgage decree was entered in favour of the plaintiffs. The decree directed that the defendants should jointly and severally pay a sum of money, and in default of such payment that the mortgaged property should be sold by the Fiscal in satisfaction of the decree, and if the proceeds of such sale should be insufficient, that the balance was to be recovered by execution levied upon any other property of the defendants. This is the usual form of decree, except, perhaps, for the direction that the sale was to be held by the Fiscal. Apparently no steps were taken under the decree till January, 1911, at which date most of the original parties were dead. Application on behalf of the plaintiffs was then made by petition for substitution of parties in place of those deceased. Inter alia, the applicants prayed that the second defendant should be substituted as the legal representative of the deceased first defendant, alleging that he was the brother and heir of the deceased, whose share of the property mortgaged was below Rs. 1,000 in value, and that he was in possession of the property of the deceased. They also prayed that execution should issue against the second defendant personally, and also as such legal

representative. This part of the application is extraordinary, and, in my opinion, should never have been allowed. The facts alleged do not constitute the second defendant the legal representative of the deceased defendant, nor is the application for writ in order (vide sections 394 and 224 of the Civil Procedure Code).

The second defendant filed a statement of objections to this application. He pleaded, among other matters, that the decree had been satisfied by payment. Eventually he consented to the substi­tution of parties and the issue of writ upon the condition that " no warrant of arrest should issue against him in the event of the balance due under the decree not being recovered. " This was on November 2, 1911, in the ordinary form given in Schedule II. of the Code, that is, to levy execution upon the property of the defendants without special mention of the mortgaged property. Under the writ the Fiscal seized four of the lands mortgaged, and applied to the Court, in May, 1912, for an extension of the writ to enable him to sell them. The returnable date of the writ was then extended to December 31,

1912,   but on December 20,  1912, it was returned to Court by the Fiscal with a report to the effect that it could not be executed, as the  plaintiffs  had  failed  to  deposit  the  fees  necessary  for  advertising the sale.    Before this report a claim had been made to one of the lands seized, and was reported to Court in June,  1912.    This claim was  upheld after an inquiry   on May 22,   1913.    On February  3, 1913,   the plaintiffs moved for a re-

Click Here to Read the rest of this document