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PALANIAPPA CHETTY v. GOMES et al.
D. C., Colombo, 3,430.
Civil Procedure Code, ns. 337-349, 319, 398—Second application for writ—Due diligence.
When a judgment-creditor issues writ against the property of th of*judgment-debtor, and the Fiscal reports that the judgment-debtor isnot posses; ed of any property, it is the duty of the judgment-creditorto apply under section 219 of the Civil Procedure Code to have thedebtor examined as to what property he is possessed of and what debtsare due to him, or to have the debtor’s person arrested under section298 of the Code. If a judgment-creditor does not avail himself ofeither of these provisions, he cannot be said to have used due diligenceto secure complete satisfaction of the decree, as contemplated bysection 337 of the Code, and is not entitled to make a second appli-cation for execution of the decree.
HE facts of the case are sufficiently ^stated in the judgment ofWithers, J.
Sampayo, for appellant.
Jayewardene, for respondent.
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7th November, 1895. Withers, J.—im*.
This appeal is against an order of the Acting District Jndge,*•
Mr. Templer, refusing to allow the plaintiff, as execution-creditor, Withxbs, J.to execnte a decree nnder section 337 of the Civil Procedure Code.
Ho obtained a decree on the 14th December, 1892, and applied fora writ on the 19th of the same month. Writ against property wasissued on the 12th February following. This matter came upbefore the Chief Justice and myself a short time ago, and wecalled for the Fiscal’s return to that writ. When the return wasexhibited, we found it to be no return at all, and the record wassent back to the District Court that the Fiscal might be directedto make a return conforming to the requirements of the Code*
This amended return is before us now, and from it it appears thatthe Fiscal duly applied to the execution-debtor, in person, for thepayment of the debt, and that the debtor failed to comply withthe demand, and further failed to surrender’any property whenrequested. It was open to the plain tiff-creditor in this case tohave adopted two steps: one, which might have disclosed theseizable debts of his judgment-debtor; and another, which pro-bably would have compelled the payment of his debt. I refer tosection 219 of the Civil Procedure Code as regards the first step,and to taking out warrants against the person of the debtor underthe provisions of section 298 of the Code as regards the other.
Having failed to take either steps, the creditor was prima fadewanting in due diligence. But he attempts to excuse himself bysaying that soon after the writ issued he came to some arrange-ment with the judgment-debtor by which the debt was to be paidoff by instalments, and he declared that he has, from time to time,received money on account from his judgment-debtor, and it is forthe balance of this unsatisfied judgment that he made applicationfor a second issue of process. The judgment-debtor strenuouslydenies that he ever made any arrangements of the kind, or any ofthe payments on account of this claim. In his answering affidavithe says that judgment was recovered against him withont anyknowledge of these proceedings on his part, and] he alleges thatthe note on which judgment was recovered was negotiated inbreach of trust by the payee, one Arunasalam.
With these conflicting affidavits before him, the Acting DistrictJudge advised himself to treat the matters as if these were noaffidavits at all, and 1 think he was justified in taking that course.
It is clear that the appellant did not exercise due diligence inattempting to recover his judgment debt. Assuming, however,that this agreement was entered into and that these paymentswere made, his conduct in this matter is open to these objections.
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1805. In the first place, he ought to have moved to recall the -writ, andWormier 7. further he ought, under the provision of section 349, to haveWithkbs, J. certified the payments to the Court from time to time. Hishaving done neither the one nor the other leads me very stronglyto suspect that the arrangement and these alleged payments arefictitious, prepared to procure his present application being grant*ed, in view of the time that has elapsed between decree and hisapplication to re-issue writ.
Affirmed with costs.
Browns, J., concurred.
PALANIAPPA CHETTY v. GOMES et al