Silva Et Al. V. Kavanihamy

1948     Present: Canekeratne and Dias JJ.

SILVA et al., Appellants, and KAVANIHAMY et al., Respondents.

S. C. 416-D. C. Matara, 15,477.

 

Civil Procedure Code-Application for writ more than one year after decree- Failure to serve notice on debtor-Irregularity-Section 347.

The provision as to service of notice in section 347 of the Civil Pro­cedure Code is merely directory. The failure to serve this notice is only an irregularity.

APPEAL from a judgment of the District Judge, Matara.

N. K. Choksy, K.C., with E. B. Wikramanayake, K.C., for plaintiffs, appellants.

N. E. Weerasooria, K.C., with M. H. A. Azeez and W. D. Gunasekera, for fifth defendant, respondent.

 

Cur. adv. vult,

 

September 23, 1948. CANEKERATNE J.-

This is an appeal by the plaintiffs from a judgment dismissing their action for a declaration of title to lot B of the land called Manamala Sayakkarage Jambisse Padinchiwasitiyawatta and for certain other relief.

The fourth defendant, Eramanis, was at one time entitled to an undivided one-fourth share of this land. He was indebted to one Babahamy, who sued him and obtained judgment in action No. 4,883 of the 

 

same court. On September 17, 1928, Eramanis made a gift of the property to his three children, the first, second and third defendants, and when this share was seized in execution of the judgment on January 15, 1931, a claim was unsuccessfully preferred on their behalf. The children thereafter -assisted by their mother, the fifth defendant, insti­tuted an action against the judgment-creditor under section 247 of Chapter 86 of the Ceylon Legislative Enactments to obtain a declaration that the share was not liable to be sold in execution of the judgment. On the date of trial, May 5, 1933, a settlement was arrived at between the parties to this action No. 7,016 and the parties in action No. 4,883, and the plaintiffs moved to withdraw their action. The Judge in sanc­tioning the withdrawal said " the plaintiffs are minors, but this settle­ment seems to be to their advantage and I approve it ". In action No. 4,883 an order was made on the same day that the defendant was to pay the sum due to the plaintiff by instalments of Rs. 20 per month, " in failure of instalment writ to issue and land to be sold ". On May 12, 1933, an action for partitioning the land was instituted and by the final decree, dated October 5, 1937, the first, second and third defendants were declared the owners of lot B in lieu of the undivided interests transferred by the father. For non-payment of costs due probably in the partition case lot B was sold on August 1, 1938, and purchased by one Fais who obtained conveyance 5 D2, dated November 11, 1938; Fais on July 30, 1940, by deed No. 5 D4, sold the lot to the fifth defendant, the mother of the first, second and third defendants. The debtor by about August 20, 1934, had paid twelve instalments, and obtained four months' time on March 28, 1935, to pay some other instalments;

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