Wijeyewardene V. Raymond

 1937   Present : Soertsz and Hearne J J.

WIJEYEWARDENE v. RAYMOND

14-D. C. Kurunegala, 17,537
 

Writ of execution-Application after one year from decree-No petition or affidavit necessary-Court is required to give notice to respondent-Civil Procedure Code, ss. 224 and 347.

Where application for execution of a writ is made one year after the date of the decree, the application need not be by petition.

In such a case the Court is required by section 347 of the Civil Procedure Code to give notice to the judgment-debtor in order to give him an opportunity* to be heard against the issue of the writ.

Muttiah Chetty v. Meera Lebbe Marikar (1 S. C. R. 244) followed;

 Perera v. Novishamy (29 N. L. R. 242) not followed.

Per SOERTSZ J.-There is no provision in the Civil Procedure Code, which requires an application for execution to be supported by affidavit
.

APPEAL from an order of the District Judge of Kurunegala. D. S. L. P. Abeyesekera (with him Senaratne), for plaintiff, appellant.

Tisseverasinghe (with him C. T. Olegasegaram), for defendant, respondent.
 

Cur. adv. vult.

 June 22, 1937. SOERTSZ J.
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In this case the defendant-respondent obtained a decree for costs against the plaintiff-appellant on July 23, 1934. After more than a year

had elapsed he applied for a writ of execution against the appellant for the recovery of the amount due to him on the decree. Notice of this application was duly served on the appellant and he was required to show cause, if any, why the application should not be allowed. He had no other cause to show, " except that proper procedure was not followed and that necessary materials were not placed before the Court for adjudication ". The trial Judge overruled the objection and directed writ to issue.

The appeal is from that order.

The objection taken by the appellant in the terms I have quoted was amplified by his Counsel on the hearing of the appeal to mean that the application for execution should have been refused inasmuch as although over a year had elapsed since the date of decree, it was not made on a petition supported by the affidavit. I wish to say at once that there is .nothing in the Civil Procedure Code, so far as I am aware, to require an application for execution to be supported by affidavit. Even the contention that in cases where a period of one year has elapsed, the application should be by -petition is based on the fact that section 347 provides that " in cases where there is no respondent named in the petition of application, for execution .... the court shall cause the petition to be served on the judgment-debtor" .... It is submitted for the appellant that those words mean that a petition is necessary where over a year has elapsed from the date of the decree sought to be executed. In my opinion that submission is unsound. Section 224 of the Code states how the application for writ should be drawn up. There is no provision in it for the judgment-debtor being made a respondent for the reason, I suppose, that judgment having gone against him he should expect that the judgment would be put into execution. But section 347 says that in cases where there has been a delay of over a year in applying for a writ the debtor shall be served by the Court, with the petition for execution and that he be heard to show cause as if he had been made a respondent. He is not required to be named as respondent by the decree-holder. The decree-holder is only required in applying for writ to comply with the provisions of section 224 of the Code. But when that application comes before the Court and the Court sees that over a year has elapsed the Court is required to proceed as if the judgment-debtor was a respondent to the application and to notice him of the application and proceed as if he had originally been named a respondent, that is to say, give him an opportunity to be heard against the issue of the writ.

The words

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