( 93 )
M. A. ISAAC PERERA v. S. BABA APPU.
D. C., Eurunegala, 1,14$.
Jurisdiction of Courts of Requests to issue mandates of sequestration—
Civil Procedure Code, ss. 653, 801—Ordinance No. 12 of 895—
Decree for damages sequestrable under chaper XLVU.
The 801st section of the Civil Procedure Code declares that thegeneral provisions of that Code should apply to Courts of Requestsin all respects, whenever they are not inconsistent with the specialrules in chapter LXVT.
There is nothing in that chapter which appears to be inconsistentwith the 47th chapter, of which sections 653 is a part; and aCourt ofRequests may order a mandate of sequestration before judgmentwhere a case arises under that section.
Withers, J.—A decree for damages in an action to recoverimmovable property is a debt which comes within the class ofproperty which can be sequestered under chapter XLVII. of theCivil Procedure Code.
r I ''BEE appellant sued plaintiff in C. R., Kurudegala, 4,316,'J- and, before judgment, obtained a mandate of sequestrationdirecting the Fiscal to sequester the judgment entered in the
( 94 )
present action in plaintiff’s favour. The Fiscal issued prohibitoryJanuary 17. notices, which were duly served on plaintiff and defendant inthis action. In the meantime plaintiff gave defendant a receiptfor the full amount of the decree, and defendant moved to havethe payment recorded as certified under section 349 of the Codein the present suit. Appellant opposed the motion. The ActingDistrict Judge (Mr. G. M. Fernando) holding that a Court of Bequestshad no jurisdiction to issue a mandate of sequestration, and thatthe mandate issued in C. R. 4,314 was ultra vires and of no avail,allowed defendant’s motion.
Sampayo, for appellant.
Domhorst, for defendant, respondent.
17th January, 1898. Lawrie, A.C.J.—
The question raised by the order under appeal is whether aCourt of Requests has jurisdiction to issue a mandate of seques-tration under 653 of the Civil Procedure Code. The 801st sectiondeclares that the general provisions of the Civil Code should applyto Courts of Requests in all respects, whenever they are notinconsistent with the special rules in chapter LXVI.
There is nothing in that chapter which appears to me to beinconsistent with the 47th chapter, of which section 653 is a part.I am therefore of opinion that the defendant is not entitled tohave the payment made by him to the plaintiff certified undersection 349.
The question we were asked to decide was, whether a Judgeof a Court of Requests may order a mandate of sequestrationbefore judgment where a case arises under section 653 of the CivilProcedure Code. I think our answer should be in the affirmative.The jurisdiction of Courts of Requests has been extended by theOrdinance No. 12 of 1895.
The powers commensurate with its extended jurisdiction shouldbe given to it, unless there is anything in The Courts Ordinanceor in the Civil Procedure Code which prevents that being done.As to the latter Code, it is enacted in the 801st section thatthe special rules in part 10, as to procedure in Courts of Requests,shall bo taken as limiting and controlling the general provisionshereinbefore contained, but so far only as any such provisions areeither expressly or impliedly applicable to such Courts ; that such
( 95 )
general provisions shall apply to Courts of Bequests in all respeots 1899.whenever they are not inconsistent with the special rules in this ^wuary 11.ohapter contained. But where there is any inconsistency, the speoial Witbbbs. J.rules contained in this ohapter shall apply.
Like my brother, I am unable to find anything in the speoialrules inconsistent with the powers conferred on a Judge under section653. Now, in oases of debt or damage over Rs. 200 the Legislaturehas thought it right to empower the Courts to assist a party plaintiffin recovering a claim against a defendant, who has been fraudulentlyalienating his property with intent to avoid payment of the debtor damage, or who has with such intent quitted the Island leavingtherein property belonging to him.
In ohapter IX. of The Courts Ordinance the Legislature thoughtfit to allow Courts of Requests to grant an injunction restraining adefendant from doing acts which would hinder or prevent theplaintiff from recovering a just claim. If a Court of Requests cangrant injunctions in aid of its jurisdiction, why should it not grantmandates of sequestration f The plaintiff who has a just claimfor Rs. 300 is placed in this awkward predicament. He cannotgo into a Court of Requests (which is the proper Court) if the defend-ant is either about to fraudulently alienate his property or aboutto quit the Island with intent to defraud him, and if he goes into aDistrict Court he may be disentitled to any costs whatever (section74 of The Courts Ordinance).
The next question we have to decide is, whether a deoree fordamages in an action to recover immovable property was a debtso as to come within the olass of property whioh can be seques-tered under chapter XLVII. of the Civil Procedure Code. I havealways understood that a judgment that A should recover againstB a sum of money as debt, damages, and costs of suit creates adebt of record by B to A. The respondent’s debt was seized andsequestered in the way provided by the Code : he was directed notto pay that debt to the plaintiff or any one until further orders.
He does so or says he has done so, and gets a receipt from the plaintiffin the case. I think the certificate should be refused him as longas this stop order is in foroe. I would therefore set aside thejudgment of the Court below.
M. A . ISAAC PERERA v. S. BABA APPU