1966 Present : Moseley J. and Fernando A.J.

FERNANDO v. KURERA et al.

73-D. C. Chilaw, 8,683.

Decree-Action on summary procedure-Judgment entered by default-Agreement entered into before judgment-Application to certify payment- Scope of section 344 of Civil Procedure Code.

Where, in an action on a promissory note by way of summary procedure after judgment had been entered against one of the defendants by default, it was agreed between the plaintiff and that defendant that on the payment of a certain sum of money and interest the plaintiff should discharge him from further liability on the note and levy the balance due from the other defendants,-

Held, that it was competent to the Court under section 344 of the Civil Procedure Code to inquire whether any payment was made in pursuance of such an agreement and to stay execution against the defendant.

Kuppe Kanny v. Caliappa Pillai (19 N. L. R. 353) followed.

THIS was an action by way of summary procedure brought by the plaintiff to recover a sum of money due on a promissory note from the defendants of whom the respondent was the sixth. Although summons was served on November 3, 1928, on the respondent, he did not apply for leave to appear and defend. However, the action could not proceed as some of the other defendants had died. On September 26, 1935, the respondent moved that a sum of Rs. 1,140 paid by him to the plaintiff be certified of record.

The Court held that although no formal decree had been entered against the respondent, the case had been concluded as between him and the plaintiff and directed that decree be entered against the respondent with liberty to him to move under section 349 of the Civil Procedure Code to have the payment certified. When the application to certify payment was made the plaintiff-appellant contended that the section applied to an adjustment made before decree. It was argued for the respondent that he was entitled to make his application under section 344 of the Civil Procedure Code.

The learned District Judge upheld the respondent's contention and fixed the matter for inquiry. The plaintiff appealed.

J. R. Jayawardene, for plaintiff, appellant.-This appeal involves a consideration of sections 344 and 349 of the Civil Procedure Code.

Section 349 would not apply as the alleged payments were made before decree had been entered. See Kuppe Kanny v. Caliappa Pillai [1 19 N. L. R. 253.]. Section 344 cannot be availed of by the defendant, as that section only contemplates questions relating to the execution of the decree. The Court has no authority to inquire into payments made before the passing of the decree under that section. It was possible for the defendant either to contest the action, prove the payments and ask the Court for a judgment and decree in his favour ; or if the other party agreed, to apply under section 408 of the Civil Procedure Code for a decree in terms of a mutual

adjustment. He failed in an application under section 408 but did not contest the action, though he had an opportunity of doing so. His application now is an attempt to attack a valid decree obtained by us, on the ground of an adjustment prior to the decree. His application is premature. The action has not reached the stage of execution. Plaintiff has a decree in his favour, but he has not sought to execute it. Section 344 refers to " questions relating to the execution of the decree ". When the plaintiff seeks to execute his decree-he may never do so-it will be time then for an application under section 344.

In any case section 344 would not help the defendant. The learned Judge relied on the case of Kuppe Kanny v. Caliappo Pillai (supra). This case was considered in the later case of Velu Pillai v. Sundaram-pandianpulle [1 21 N. L. R .236. ]. De Sampayo J. after considering Indian authorities says that the previous case is not a sufficient authority for the proposition that an