1936 Present : Akbar S.P.J. and Koch J.

SILVA v. LEIRIS APPU.

164-D. C. (Inty.) Tangalla, 2,838.

Judgment-debt-Appropriation of payments by judgment-debtor after decree- Principle of Roman-Dutch law.

The rule of the Roman-Dutch law that a payment by a debtor should be applied by the creditor to the liquidation of the most onerous part of the debt has no application to a judgment-debt.

APPEAL from a judgment of the District Judge of Tangalla.

L. A. Rajapakse (with him Olegasegaram), for defendant, appellant.

N. E. Weerasooria, for plaintiffs, respondent.

Cur. adv. vult.

July 3, 1936. AKBAR S.P.J.-

By mortgage decree dated August 15, 1929, the defendant-appellant was ordered to pay Rs. 882 being principal and interest due on a mortgage bond with interest at 9 per cent, from date of decree till date of payment and also costs of the action. In default of payment of this amount, interest, and costs on or before August 31, 1929, the mortgaged property was to be sold and the proceeds applied towards the payment of the. amount, interest, and costs. On January 30, 1930, the application of the plaintiff for execution of decree was allowed. The amount mentioned in the application was Rs. 1,031.42, which was made up as follows: Rs. 882 (amount of principal and interest in decree), Rs. 33.48 (interest from date of decree till date of application), and costs Rs. 115.94. This order to execute the decree was recalled, as defendant had made a part payment on the decree of Rs. 250 on March 19, 1930. On March 16, 1931, plaintiff again applied for execution for Rs. 862.20, which was made up as follows; Rs. 781.42 (being the difference between Rs. 1,031.42 and Rs. 250), Rs. 77.18 (being interest from January 22, 1930, to March 14, 1931, on Rs. 781.42), and Rs. 3.60 (costs for the reissue).

The defendant again made a part payment, of Rs. 250 on May 29, 1931, and the order to execute was again recalled. The defendant made further payments of Rs. 250 on June 21, 1931, and Rs. 100 on August 31, 1932. On October 12, 1932, plaintiff applied for execution for the

balance then due of Rs. 327.59. Objection was taken to this application on the ground that the part payments should have been set off, as they were made against the more onerous portion of the decree, viz., Rs. 882", which was liable to interest and not as against the full amount of the decree including costs which were not liable to payment of interest. The District Judge ruled against the defendant, hence this appeal. In my opinion the appeal fails on two grounds. In the first place the part payments were made after the issue of the order for execution, .and defendant had full notice of the manner in which the plaintiff was applying the part payment as he had indicated this in his application for execution dated March 16, 1931.

In spite of this application which is in the record, the defendant made three further payments of Rs. 250, Rs. 250, and Rs. 100 on May 29, 1931, June 21, 1931, and August 31, 1932. In the next place although the Roman-Dutch law is clear that part payments should be set off against the more onerous debt when the debtor is indebted on two or more obligations, I do not think this will apply to a judgment-debt which comprises and is made up of two or more debts, some of which are more onerous than the others- The judgment-debt is one debt and the order for execution issued to the Fiscal or Commissioner is in effect an order to levy one sum, which is found to be due on the date of demand by that official, whatever the component parts of this lump sum may be or in whatsoever a manner they may be made up.

Under the Roman-Dutch law (which will be" found in 2 Nathan, p. 593; Morice's Roman-Dutch Law, p, 97) the debtor has the choice of indicating to his creditor to which debt the part payment is to be appropriated. There was no such evidence in this case. In the absence of any such indication