Piyaratne Thero V. Rahim

1954 Present : Swan, J., and Sansoni, J.

PIYARATNE THERO, Appellant, and RAHIM, Respondent

S. C. 140-D. C. Kandy 324/ M. S.

Execution-Decree to pay money-" Subsequent order directing the payment of money to be made at a specified date "-Civil Procedure Code. s. 337 (1) (b).

Judgment was entered in 1939 for the payment of a sum of Rs. 696. In 1940 an application for execution was made and, on writ being issued, a sum of Rs. 80 only was recovered. In 1943 a subsequent application for execution was made and on February 7, 1944, the Court allowed the defendant to pay the decreed amount in monthly instalments of Rs. 20 and ordered that in case of default the writ could be reissued. Plaintiff applied for execution several times thereafter but nothing was recovered from the defendant. On July 17,. 1953, a similar application was made by the plaintiff and, on being noticed, the defendant objected to the reissue of the writ on the ground that over 10 years had expired since the date of the decree.

Held, that the order of February 7, 1944, was not a " subsequent order directing the payment of money to be made at a specified date " within the meaning of section 337 (1) (b) of the Civil Procedure Code. At most it amounted to a concession granted to the defendant as to the manner of settling the amount he had been decreed to pay. The application of July 17, 1953. was therefore time-barred and should be refused.

Muthu Ramen Chetty v. Mohammadu (1919) 21 N. L. R. 97, followed.

Meenatchi Atchy v. Palaniappa Chettiar (1941) 42 N. L. R. 333, distinguished.

APPEAL from a judgment of the District Court, Kandy.

P. Somatilakam, for the defendant appellant.

M. Rafeek, for the plaintiff respondent.

Cur. adv. vult.

November 30, 1954. SANSONI, J.-

In this case a judgment by default was entered against the defendant on 27th November, 1939, for the payment of a sum of Rs. 696 with further interest and costs. On an application for execution made in 1940, writ was issued and a sum of Rs. 80 was recovered from the defendant on that occasion. In 1943 a subsequent application for execution was made and the defendant was noticed. Eventually on 7th February, 1944, the Court allowed the defendant to pay the decreed amount in monthly instalments of Rs. 20 commencing from 1st November, 1944, and ordered that in case of default, the writ may be reissued. The defendant apparently made default in paying the instalments and the plaintiff applied for execution several times thereafter but nothing was recovered from the defendant. On 17th July, 1953, a similar application was made by the plaintiff and on being noticed the defendant objected to the reissue of the writ on the ground that over 10 years had expired since the date of the decree.

After hearing Counsel appearing for the parties the learned Additional District Judge allowed the plaintiff's application on the ground that ]() years had not elapsed since 7th February, 1944, when the Court made order allowing the defendant to pay the decreed amount in monthly instalments.

The defendant has appealed and it is necessary to consider whether the order of 7th February, 1944, is a " subsequent order directing the payment of money to be made at a specified date " within the meaning of section 337 (1) (b) of the Civil Procedure Code, for if it is the period of 10 years within which a subsequent application for writ may be granted commences to run only from the date of default in making the payment. It seems to me that the matter is concluded by the judgment of schneider, A. J., and de Sampayo, J., in Muttu Ramen Chetty v. Mohammadu 1[(1919) 21 N. L. R. 97.] In that case a mortgage decree was entered in 1902. In 1911

an application for execution was made and on 2nd November, 1911, the defendant consented to the issue of writ and writ was issued. In 1917 the plaintiff applied to issue writ and it was objected that ten years had exp

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