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ABDAN v. DEENG. R., Galle, 1,671
Arrest of person for debt—Materials for order of discharge on the groundof poverty—Civil Procedure Code, ss. 800 and 301—Poverty.
Under section 300 of the Civil Procedure Code, the mere non-possession ofproperty by a debtor seized in execution is not a reason for releasing him asa person unable from poverty to pay the amount of the decree.
In view of the fact that the debtor borrowed the sum of Bs. 360 for carryingon his trade, and had Bs. 160 as dowry nine months before, it was his dutyto account for them.
HE defendant being brought up on writ of execution authoriz-ing the recovery of a sum of Rs, 271 decreed against him,
the Commissioner (Mr. F. J. de Livera) examined him, when hedeposed as follows:—
“ I am defendant in this case. I made the promissory note suedupon, for goods supplied, to enable me to carry on business, whichj[ did in Kunjie Bawa Shaik Mofaamado’s boutique. I do not tradein that boutique now. My brother does not trade in that boutiquenow. I do not know who trades in that boutique now. I earn 25or 30 cents a day. I married1 nine months ago. When I marriedI. got Rs. 150 in' cash. . That money has gone. Jewellery men-tioned in the kadutam I never got. My wife got one-sixth ofRadagewatta, when I married, by deed. I can earn 40 or 50cents a day as a cutter of gems. ”
The District Judge ordered as follows:“Defendant is
possessed of no property. I therefore decline to commit him. ”•
Bawa, for appellant.
Samarawickrama, for respondent.
Cur. adv. vuli.
15th May, 1902. Wendt, J.—
On 20th July, 1900. defendant was condemned by the decree inthis action to pay plaintiff a balance sum of Rs. 271.79 (withcosts Rs. 25.25) for goods sold and money lent him in January,1900, to the value of Rs. 860.60. The defendant hadi in Marchmade two payments on account aggregating Rs. 88.81. • Executionwas issued, to which the Fiscal re tinned, oh 2nd October, 1900,that he could find no property of the judgment-debtor. On 27thOctober the plaintiff issued execution against defendant’s person,.
May 13 dk 15-
May 13 <fc IS.Wendt, J.
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and be was duly arrested and produced in Court. The Court,however, refused to commit him to prison, but discharged himon the ground that he was possessed of no property. Plaintiffappeals.
The order of discharge was presumably made under section 300of the Civil Procedure Code, which empowers the Court, if thejudgment-debtor is unable from poverty or other sufficient pause'to pay the amount of the -decree, to make an order directing hisrelease upon such terms, if any, as it thinks fit. Section 301,however, specifies certain matters which the Court, before makingsuch order, may take into consideration, and among theim “ the“ debtor’s refusal or neglect to pay the amount of the decree or“ some part thereof when he has, or since the date of the decree“ has had, the means of paying it. ”
The debtor was examined, and deposed that he had) incurredthe debt in order to “ carry on business. ” When he ceased to doso, he did not say. . He married nine months before (say, March,1900) and got Rs. 150 in cash as dowry. “That money, ” headded simply, “ has gone. ’’ His wife got one-sixth share ofRadagewatta on -her kaduta-m, in which that property was valuedat Rs. 750. Defendant also' said he could earn 40 or 50 centsa day as a cutter of gems. Plaintiff was called as a witnessand said) defendant traded in Kunjie Bawa’s boutique until heexecuted his j writ, when defendant left it, and since then hisbrother-in-law Lay Deen traded in it. Defendant was now inpossession of Radagewatta.
* In view of the facts that the debt was incurred for the purposeof defendant’s boutique trade; that he got Rs. 150 in cash withintwo months afterwards which he does not account for; that hiswife owns landed property of which he is in possession; and thathe does not account for the proceeds sale of the goods, I thinkthis is a case in which those facts ought to have been taken intoconsideration by the Court, and that the result of such considera-tion ought to have been a refusal to discharge the defendant fromarrest. The mere non-possession of property at the time of arrestcannot be an absolute reason for releasing the debtor. Else aman might 'buy a- quantity of valuable goods, to-da-y, gift themto somebody or squander them to-morrow, and, when arrestednext week, plead that he is “ possessed of no property,” and be■entitled to 'his discharge. I feel sure that that is not what wasintended) by the term “ poverty ” in section 300; ■
I reverse the .order of 28th December, 1900, and direct thatthe defendant be brought up and committed to prison. Theappellant will have his costs in both Courts.
ABDAN v. DEEN