DBIEBERG J.—Kanagasabai t>. Kasinathar.
1930Present: Fisher C.J. and Drieberg J.KANAGASABAI u. KASINATHAR.
236—D. C. Jaffna, 17,738.
Civil warrant—Issue of warrant against judgment-debtor—Voluntary surrender—Application for discharge—Civil Procedure Code, s. 311.
A judgment-debtor, for whose arrest a warrant is issued a ad whosurrenders voluntarily, is entitled to be discharged under section 811 ofthe Civil Procedure Code before committal.
^^PPEAL from an order of the District Judge of Jaffna.
Subramaniam, for plaintiff, appellant.
. N. E. Weerasoona, for defendant, respondent.
January 31, 1930. Drieberg J.—
In this case, after unsuccessful endeavours to realize the amount ofthe decree by writ against the property of the respondent, the judg-ment-debtor, the appellant obtained issue of warrant of arrest of therespondent.
After issue of the warrant, but before the returnable date, the re-spondent appeared in Court and filed papers as required by section 306of the Civil Procedure Code for his discharge. The journal entries do notshow that he applied in person, but the District Judge speaks of hiscoming into Court.
The District Judge made order under section 309 fixing a date for thehearing of this petition, and the respondent entered into a bond withsecurity for his appearance on that date.
On the day of inquiry, after hearing evidence, the District Judgeordered the discharge of the respondent under section 311.
The appellant contends that on the facts proved the respondent wasnot entitled to a discharge. Apart from this, Mr. Subramaniam for theappellant took two objections. One was that section 306 allowed anapplication for a discharge to be made by a judgment-debtor only "afterarrest or imprisonment, and that the respondent in this case had notbeen arrested or imprisoned. Though the words of the section takenliterally will support this contention there is, I think, no real foundationfor it.
The object of proceedings under section 298 is the commitment of adebtor to prison, and the warrant of arrest is issued to the Fiscal merelyfor the purpose of having the debtor produced before the Court so thatthe Court may commit him.
Under section 311 a debtor who can satisfy the Court regarding thematters stated in sections 307 and 311 is entitled to a discharge, andI cannot see why his right to be discharged should depend on hishaving been arrested by the Fiscal and why he should not have the sameprivilege if he surrenders voluntarily to Court. If, after such voluntarysurrender, the Court at the inquiry is of opinion that the debtor is notentitled to a discharge, there is nothing to prevent the Court making anorder for his committal.
T1YAT/T1 GRANT J.—Muttu Mokammadu 0. Ramasamy Che tty.
It might, with equal force, be argued that the Court has no power tocommit him if he vountarily surrenders, and that the committal couldbe made only after arrest by the Fiscal. I can imagine a case of a debtorbeing present in Court when the order for execution against his personis made and immediately surrendering and submitting himself to com-mittal.
The other point is that, in an application for discharge, the debtor hasto state the names and residences of his creditors and has to pay the costof serving the interlocuftory order on any judgment-creditor named inthe affidavit. In this case there was one other judgment-creditor, andMr. Subramaniam says that there is nothing in the record to show thatnotice was served on this creditor. This objection was taken for thefirst time in appeal. If it had been taken in the lower Court, the re-spondent would no doubt have been required by the Court to depositthe cost of serving notice of the order. The omission, in fact, is one forwhich the Court is partly responsible, for under section 308 the inter-locutory order should not have been made, unless the costs of servingnotice of the judgment-creditor had been deposited.
Both these objections fail and there only remains for considerationthe merits of the order.
The judgment-debtor is an old man of seventy years of age and heascribes his present condition to trade losses and has called a Chettywho supported him on this point. The original liability goes back -to1920. Judgment was obtained in 1923 and execution proceedingsduring all these years have realized only about Bs. 290. There is nogood reason for interfering with the discretion exercised by the learnedJudge.
The appeal is dismissed with costs.
Fisher C.J.—I agree.
KANAGASABAI v. KASINTHAR