1960 Present : Basnayake, C.I., and H. N. G. Fernando, J.

RATWATTE, Appellant, and ABDUL AZEEZ,
Respondent

S. C. 8 - D. C. Kandy, 4693/MS

Civil Procedure Code-Subsequent application for execution of decreer-Conditions necessary for granting it-Application for writ more than one year after decree Effect of failure to serve notice on debtor-Section 224, 337. 347.

Where a subsequent application in terms of section 337 of the Civil Procedure Code is made for the execution of a decree. the Court has no power to grant the application unless it is satisfied that on the last preceding application due diligence was used to procure complete satisfaction of the decree or that execution was stayed by the decree-holder at the request of the judgment debtor.

Quaere, whether where one year has elapsed from date of decree. non-compliance with the requirement of section 347 of the Civil Procedure Code that a copy of the application for execution should be served on the judgment debtor an invalidate an execution sale which has already taken place.

APPEAL from a judgment of the District Court, Kandy.

B. S. C. Ratwatte, for Defendant-Appellant.

M. T. M. Sivardeen, for Plaintiff-Respondent.

cur. adv. vult.

401

June 17, 1960. BASNAYAKE, C.J. -

The question that arises for decision on this appeal is whether the learned District Judge was right in allowing the subsequent application for execution of the decree.

The material facts shortly are as follows :-On 22nd March 1956 the plaintiff-respondent obtained judgment in a sum of Rs. 25,000 with legal interest thereon and costs against the defendant-appellant. On 24th April 1956 the plaintiff made his application for the execution of the decree as required by section 224 of the Civil Procedure Code. The application was allowed on 30th April 1956 and the writ was issued on 4th May 1956. It would appear that the Fiscal returned the writ unexecuted with the following remark: "That the defendant could not be found to demand payment and that the plaintiff too did not take any steps to point out any properties for seizure and sale." On 9th July 1958 a second application for the execution of the decree was made in the prescribed manner. The application made in the form required by section 224 stated: "We pray that the sum of Rs. 25,000 with legal interest and costs of suit may be realised by reissue of writ against defendant's properties." The Judge ordered that an affidavit be filed as this was not the first application for execution of the decree and he presumably desired to satisfy himself that the conditions precedent to the grant of a subsequent application for execution prescribed in section 337 of the Civil Procedure Code existed. On 1st August 1958 an affidavit dated 28th July 1958 was filed. In that affidavit the plaintiff stated:

"2. I obtained judgment in this case against the defendant for the recovery of the sum of Rs. 25,000 with legal interest thereon from 5.10.55 till payment in full and costs of suit.

"3. As the defendant failed to pay the amount due to me as aforesaid I issued writ and instructed the Fiscal, Central Province, to execute the writ.

"4. Thereafter the defendant having come to know the said fact came to me and asked me not to take further steps but would pay the amount due and asked for time to pay.

"5. I fully believing the defendant did not take further steps and the writ has been returned to court after lapse of time.

"6. The defendant as promised failed and neglected to pay the amount due and I am therefore desirous of taking further steps in this case to enable me to recover the amount due.

"7. I would have taken steps early if not for the facts mentioned in the 4th paragraph hereof."

Upon this affidavit the court made the order: "Reissue writ now" and on 11th August 1958 the writ was reissued. Before it was executed on 30th September 1958 the defendant filed a petition in which