Wimalasekera V. Parakrama Samudra Co Operative Agricultural Production And Sales Society, Ltd.

1955 Present : Swan, J., and K. D. de Silva, J.

E. S. WIMALASEKERA, Appellant, and PARAKRAMA SAMUDRA
CO-OPERATIVE AGRICULTURAL PRODUCTION AND SALES
SOCIETY, LTD., Respondent

S. C. 77-D. C. Anuradhapura, 3,452

Execution-Writ issued without jurisdiction-Seizure of goods thereunder-Liability for damages-Proof of malice-Quantum of damages-Civil Procedure Code, s. 763.

A seizure of goods on a writ issued without jurisdiction renders the party, at whose instance the seizure was effected, liable in damages without proof of malice.

Under the provisions of section 763 of the Civil Procedure Code it is imperative that, in an application for execution of a decree which has been appealed against, the judgment-debtor should be made respondent. A writ which fails to comply with this requirement of section 763 falls into the category of a writ issued without jurisdiction.

It is the duty of a party who is entitled to claim damages to take all reasonable steps to minimise the damages.

APPEAL from a judgment of the District Court, Anuradhapura.

N. Kumarasingham, for the defendant appellant.

H. V. Perera, Q.C., with E. R. S. R. Coomaraswamy, for the plaintiff respondent.

Cur. adv. vult.

September 14, 1955. K. D. DE SILVA, J.-

This is an appeal from a judgment of the District Judge, Anuradhapura, awarding the plaintiff a sum of Rs. 12,276 with legal interest thereon as damages for illegal seizure of the goods belonging to the plaintiff.

The plaintiff is a Co-operative Society duly registered under the provisions of the Co-operative Societies Ordinance (Cap. 107) which carries on the business, inter alia, of the purchase and sale of paddy. The defendant on 9th August, 1951, obtained judgment against the plaintiff in Case No. 3122 D. C. Anuradhapura in a sum of Rs. 41,892.50. On the same day that judgment was entered in that action the present plaintiff who was the defendant in that case filed a petition of appeal. The same day the Proctor for the plaintiff in that action filed an application for execution and obtained a writ for the recovery of the amount due on the decree. This writ was issued to the Fiscal returnable on 1.12. '51. On 15.8.'51 the Proctor for the defendant in that case filed a petition stating, inter alia, that the application for writ had been made after the appeal had been taken against the judgment but that the judgment-debtor had not been made a respondent to the writ application as required by Section 763 of the Civil Procedure Code. Therefore he moved that the application for execution be refused and the writ be recalled. On the previous day, that is to say on 14th August, the Fiscal had seized on this writ 3908 bushels of paddy and lorry bearing No. C. L. 5148 belonging to the judgment-debtor. These goods were pointed out to the Fiscal by the judgment-creditor for seizure. On 16.8.'51 the Counsel for the judgment-debtor supported the application for recall of writ and the learned District Judge made order recalling the writ and directed the judgment-debtor to pay the Fiscal's charges, if any. He further directed that notice of the application for recall of writ be issued on the. judgment-creditor. On the same day the Fiscal on receipt of the order recalling the writ reported to Court that 3908 bushels of paddy and lorry No. C. L. 5148 had already been seized and asked for instructions as to what should be done regarding the seizure, and the learned District Judge on the same day made the following order :-

" The property seized to be released on giving security." No security however was tendered by the judgment-debtor and the property continued to remain under seizure.

The matter of the application for recall of writ came up for inquiry on 11.9.'51 and the learned District Judge made his order on 18.9.'51 that the order of 9.8. '51 to issue writ had been made per inc

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