Fernando, A.C. Et Al. V. M. Thambiraja

1945 Present : Jayetileke J.

H. C. FERNANDO et al., Appellant, and M. THAMBIRAJA,
Respondent.

237-C. R. Negombo, 45,321.

Execution-Application for writ more than one year after decree-Notice to   defendant-Application by petition-Civil Procedure Code, s. 347.

Where more than one year has elapsed between the date of the decree  and the application for its execution the failure to give the defendant notice of the application for writ renders the execution proceedings void and of no effect.

The provisions of section 347 of the Civil Procedure Code requiring application by petition and notice of it to the defendant must be strictly followed.

APPEAL from an order of the Commissioner of Requests, Negombo.

D. S. L. P. Abeyesekere for defendants, appellants.

S. N. Rajaratnam (with him S. P. M. Rajendram) for the respondents.

Cur. adv. vult.

February 9, 1945. JAYETILEKE J.-

This is appeal by the defendant from an order dismissing her application to have a sale held by the Fiscal set aside. On September 2, 1942, the plaintiff obtained a decree against the defendant for a sum of Rs. 45 and costs payable by monthly instalments of Rs. 3. The defendant paid thirteen instalments and defaulted thereafter. On March 27, 1944, the plaintiff applied for and obtained an order for a writ of execution for the recovery of the balance amount due to him on the decree without notice to the defendant. The application is in tabular form No. 42 in Schedule II of the Civil Procedure Code. On June 27, 1944, the Fiscal put up for sale a land belonging to the defendant and the second respondent purchased it for a sum of Rs. 15. The question that arises for for considera-tion is whether the failure to give the defendant notice of the application for writ renders the execution proceedings void. Section 347 of the Civil Procedure Code provides that where more than an year has elapsed between the date of the decree and the application for execution the application shall be by petition, and that when no respondent is named in the petition of application for execution the Court shall cause the petition to be served on the judgment-debtor. Beale on Cardinal Rules of Legal Interpretation says at page 375, 3rd Edition : -

" When a statute declares that something ' shall ' be done, the language is considered imperative, and the thing must be done ; where the word ' may ' is used, the language is, as a general rule, permissive ". In Perera v. Novishamy 1[29 N. L. R. 242.] Schneider J. pointed out that the procedure indicated in this section must be strictly followed. In Ran Menik Etana v. Appuhamy 2[24 N. L. R. 357.] where an application to certify payment under section 349 of the Civil Procedure Code was not made by petition, as required by the section, it was held that the procedure must be strictly followed before payment can be recognized. In the present case there is, in addition to the defect in the form of the application, the fact that no notice of the application was given to the defendant. The legislature has, presumably, provided for notice to be given to the judgment-debtor in order to give him an opportunity of showing cause against the issue of writ or paying the amount due on the decree. Had the defendant been served with notice of the application it is, at least, probable that she would have paid the amount due having regard to the fact that she has brought it into Court when she made the present application.

The effect of the failure to give notice under section 248' of the Indian-Code of Civil Procedure of 1882, which corresponds with section 347 of our Code, has been considered in several cases. In Gopal Chunder Chatterjee v. Gunamoni Dasi 3[I. L. R. 20 Cal. 371.] Norris J. said : -

" I am of opinion that the issuing of the notice required by section 248 of the Code of Civil Procedure is a condition precedent to the execution of the decree against th

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