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Present; De Sampayo and Porter JJ.
FRASER v. VYTHIANATHAN d al.42—D. G. Colombo, 2,589.Decree for costs only—Warrant of arrest in execution—Civil ProcedureCode, s. 829.A warrant of arrest may be issued in execution of a decree forcosts only*
* | THE facts appear from the judgment.
. Arulanandan (with him S. Bajaratnam), for appellant.—Thedefendant -appellant failed to pay costs, and was arrested on awarrant in execution. The other defendants were declared entitledto draw the money, and the Court decided that the appellant wasnot a trustee of the temple. That was a substantive decree againstthe seventh defendant-appellant. He was not liable to arrest.
Counsel referred to Soysa v. 8oysa.x
Jayawardene, K.C. (with him Olagasegram), for the respondents.
June 21,1922. Db Sampayo J.—
This is an appeal from an order committing the seventh defendantto jail in default of payment of a sum due as costs. It appears thatthe Government Agent took proceedings for the acquisition of aportion of land belonging to some temple, and there was a contestfor the compensation deposited in Court. The Government Agentmade as defendants to the proceedings eight parties. The firstdefendant is acknowledged to be at least one of the trustees of thetemple. The second, third, fourth, and fifth defendants claim to beco-trustees with the first defendant by appointment by the firstdefendant in the exercise of some power vested in him. The sixthand seventh defendants also claim to be trustees, but on the badsof an appointment by the congregation. The circumstances wouldindicate some dispute as to the status of these defendants as trustees.The seventh defendant as well as sixth defendant failed to establishtheir status to the satisfaction of the Court, and the result of theinquiry was that the first to the fifth defendants were declaredentitled to the sum in Court, and the seventh defendant was con-demned to pay the costs of the first to the fifth defendants. As hedid not pay the amount of costs as taxed, warrant of arrest wasissued, and the seventh defendant was arrested. When he was 1
111898) 8 0. L. B. 1$.
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brought to Court, it was contended on his behalf that for non-pay-ment of costs he was not liable to be arrested. The same contentionis maintained here in appeal. But it appears to me that undersection 299 of the Civil Procedure Code it is only where a substantivedecree is given against any defendant for the payment of money ordelivery of any property that the costs, though awarded, cannotbe taken into account in calculating the amount on which a manmay be arrested. In this case there was no substantive decreeagainst the seventh defendant. All that happened was that, hehaving failed to establish the status which he set up, the otherdefendants were declared entitled to the money in Court. Therewas no decree in that respect executable against the seventhdefendant, so that all that could be executed against him was thedecree for costs. In my opinion, under section 299 and on generalprinciples, a deoree for costs alone is- a decree for money whichmay be executed by ordinary execution or by warrant of arrest.This is the view taken so long ago as 1892 in Soysa v. Soyea.1 Ithink the District Judge was right, and this appeal should bedismissed, with costs.
Pobteb J.—I agree.
FRASER v. VYTHIANTHAN et al