( 202 )
KAT1IJA UMMA y. ASSENA LEBBE.
P. C., Kalvtara, 21,060.
Order for maintenance—Amount payable under it—Recovery of—Can-cellation of order—Ordinanc&No. 19 of 1889, es. 3 and 10.
The monthly allowance which a person is condemned to makeunder section 3 of Ordinance No. 19 of 1889 can only be levied, as inthe case of a fine imposed by a Police Magistrate, by distress andsale of'movable property of the person condemned.
A Magistrate should not cancel an order under section 3 of,Ordinance No. 19 of 1889 on the mere statement of a police vidan6that the person condemned has no property.. Such a statementshould be on oath or affirmation, and the complainant should beallowed an opportunity of examining the person making'it anddisproving it, if she can.
If a person against whom an order for maintenance is made hasimmovable property from which he derives any rent, profit,,,orincome sufficient to make the payments as they fall due, he must beconsidered os having sufficient means to pay them. If such personwill not obey the order, he runs the risk of being sentenced toimprisonment for his default.
FN this case the Police Magistrate made order under section 3of (Ordinance No. 19 of 1889 that the accused should payinto Court monthly the sum of Rs. 20 for the benefit of thecomplainant and her children. Subsequently the accused applied
( 203 )
to the Magistrate under section 10 of the Ordinance for acancellation of the order as he had then no movable property,and his immovable properly had been seized on a writ sued outby the complainant in the District Court. On a statement madeto the Magistrate by a police vid&n£ that the accused had noproperty apart from that seized on the complainant’s writ, theMagistrate cancelled the order for maintenance. On petition tothe Supreme Court by the complainant, the case was sent for anddealt with in revision.
There was no appearance of counsel for either side.
28th September, 1896. Withers, J.—
The question for decision in this case is whether the Magistrate’sorder, cancelling his former order of maintenance till further orders,should be discharged or should be sustained as a legal and properorder. The order in question was apparently made under theprovision of section 10 of the Maintenance Ordinance No. 19 of 1889.It appears that the defendant was in default of payment of a monthlyinstalment payable by virtue of a maintenance order. In con-sequence of his default a warrant was signed by the Magistrate andissued for the levy of the amount by distress and sale of movableproperty.
The warrant was returned unexecuted on the ground that tljedefendant had no movable property out of which the amount couldbe levied. The Fiscal in his return reported that the defendant had.immovable property sufficient to satisfy the levy, but the Magistratedeclined to issue a warrant of distress against the defendant’simmovable property. There I think he was right. The amountof the order according to section 9 ought to be levied in the mannerby law provided for levying fines imposed by Magistrates in thePolice Courts. Section 378 of the Criminal Procedure Code enactsthat whenever an offender is sentenced to pay a fine, the Courtpassing the sentence may in its discretion issue a warrant for a levyof the amount by distress and sale of any movable property belong-ing to the offender. It further appears from the Magistrate’s letterforwarding the proceedings in review that the complainant in themaintenance proceedings has recovered judgment against defendantin the District Court for a sum of Rs. 1,200. That under a writ inexecution of that judgment all the immovable property of thedefendant has been seized. In view of these circumstances, namely,,the Fiscal’s return, that the defendant has no movable property on■whicll to levy, and that all the immovable property had been seizedin execution of the civil judgment, the Magistrate made the order
( 204 )
September 28.■Withers, J.
which is the subject of revision. If at the time of making the orderthe defendant' had no means of paying the maintenance ordered inwhole or in part, I think the order is a right one. It would operateuntil the defendant ‘is found to have sufficient means to pay theinstalments monthly as they became due. But I question if theorder now in revision is founded on sufficient materials. Section 10.of the Maintenance Ordinance enacts that on the application of anyperson receiving or ordered to pay a monthly allowance under the:provisions of this Ordinance, and on proof of a change in the cirrcumstances of any person for whose benefit or against whom anorder for maintenance has been made under section 3, the Magistratemay either cancel such order or make such alteration in the allowanceordered as he deems fit, &c. I cannot find the requisite proof of achange in the circumstances of the defendant. In his judgment theMagistrate records that the Police Vid£,n6 of Alutgama states thatthe defendant has no property apart from that sequestered by theapplicant in the civil District Court case above referred to. This'statement ought in my opinion to be made on oath or affirmation,either orally or by affidavit, and the complainant should be allowedan opportunity of examining the vidan£, if she can, on that state-ment. According to the petitioner in revision the defendant hasabundant means of paying the amount of maintenance ordered.I think she should be allowed an opportunity of supporting herstatement. If after further inquiry into the matter the Magistratefinds that at the present moment the defendant has not the meansof discharging the maintenance order, the order in revision willstand ; otherwise it will be reversed.
The mere fact that defendant has no movable property on whichto levy the amount of a maintenance order which is not paid atthe proper time appears to me, as at present advised, not sufficientground in itself for rescinding the order. If he has immovableproperty from which he derives any rent, profit, or income sufficientto make the payments as they fall due, he must he considered ashaving sufficient means to pay them. If having these means hewill not obey the order, he simply runs the risk of being sentenced toimprisonment for his. default. The case must he remitted forfurther inquiry.
KADIJA UMMA v. ASSENA LEBBE