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Present: Lascelles C.3. and Ennis J.
EAMASAMY v. CHETTY.56—D. 0. (Initj.) Kandy, 1,579.
Indian eooly—Protection from arrest for debt—Ordinance No. 9 of 1909,s.19—Insolvent—Certificatein form R tcithdrawing protection
The protection from arrest for debt under section 19 of the Indian<*ooiie« Ordinance. No. 9 of 1909, extends to ' an Indian cooly fromwhomprotection from arrest has beenwithdrawn under the
fj1 HE facts appear sufficiently from the judgment.
Bawa, K.C., for the insolvent, appellant.—The appellant is anIndian cooly, and is therefore not liable to be arrested for debt byvirtue of the provisions of section 19 of Ordinance No. 9 of 1909.In cases of arrest for debt, it is the provisions of the Civil ProcedureCode which apply, and not the Insolvency Ordinance. It washeld by the Pull Court in Salgado v. Perris 1 that the provisionsof the Civil Procedure Code applied as .to appeals in insolvencycases.
In In re Pieris 2 an insolvent who was returning from Courtafter acquittal on a criminal charge was held to be not liable to bearrested under a warrant issued under section 152 of the InsolvencyOrdinance.
It was held that the provisions of section 834 of the Civil ProcedureCode applied to such cases. The object of enacting section 19 ofOrdinance No. 9 of 1909 is to exempt agricultural labourers fromarrest (see statement of object and reasons in Tambyah's Planters*Manual 131). The object would be defeated if the labourer wereliable to be arrested under the Insolvency Ordinance.
Counsel also cited 33 L. J. C. P. 109, Maxwell 844.
Wadsworth, for the petitioner, respondent.—The certificate inform B is issued when the Court is satisfied that the insolvent hascommitted offences referred to in section 151 of the Ordinance.The arrest under the Insolvency Ordinance is in the nature of apunishment. Section 154 makes special provision for imprison-ment for one year. Arrests under the Insolvency Ordinance havenothing to do with the Civil Procedure Code. The two Ordinancesare independent of each other. Counsel referred In reW. H. de Vos.3
Cur. adv. vult.
1 (1909) 12 N. L. It. 379.2 (1900) 1 Br. 1.
* 2 Br. 357.
3J. X. A 99908- (8/50)
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1914. June 10, 1914. Lascbli.es C.J.—
This appeal raises the question whether an uncertificated insolvent,who is an estate kangani, is protected from arrest for debt by section10 of the Indian Coolies Ordinance, No. 0 of 1909. The section run*ns follows:—
“ From and after the commencement of this Ordinance nokangani, subordinate kangani, or labourer shall be liableto arrest under the provisions of the Civil ProcedureCode, 1889, or in execution of a decree for money."
The learned District Judge has held that the insolvent- was arrestedunder section 152 of the Insolvency Ordinance, and not- under theCivil Procedure Code, and that he is therefore not protected by theabove-mentioned section.
The only decided case which appears to have any bearing on thequestion is In to W. H. de Vos,1 which, is directly in point, and ustrong authority in favour of the appellant.
The insolvent in that case was in the same situation as the insol-vent here. A certificate of conformity had been refused. A creditorhad obtained a certificate under section 152 of the Insolvency Ordi-nance and taken out execution against the insolvent's person. Theinsolvent's case was that he had been arrested in contravention ofsection 866 of .the Civil Procedure Code. It- was contended by thecreditor that the arrest was not under the Civil Procedure Code, butunder section 35 of the Insolvency Ordinance, and that section 366of the Code did not apply. Bonser C.J., in dealing with this con-tention, said:" In my opinion the District Judge rightly repelled
the contention and held that this was not such an arrest underwarrant of Court as is referred to in that section, but was an arrestunder vji ordinary writ of execution against the body of the insolvent,which must be executed in the way provided for by the Civil Pro-cedure Code foe sreh or runts."
If this authority had been cited to the learned District Judge,his decision would probably have been different, for if the arrest inthe present case be regarded as an arrest under an ordinary writ ofexecution, it is an arrest under the Civil Procedure Code, and theinsolvent is exempt from arrest.
An examination of the sections of the Insolvency Ordinance-relating to .the arrest and imprisonment of insolvents shows beyondany doubt that the sanction for arrest and imprisonment is to befound, not in the Insolvency Ordinance, but in the law for the tima• being in force with regard to the execution of judgments againstthe person. Section 36, for example, protects insolvents from arrestin coming to surrender, and after their surrender until their exami-nation is over. What is the arrest here referred to ? It- is clearly
» J2 Sr. 357.
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uot arrest under the authority of the Insolvency Ordinance. It isarrest under ordinary oivU process under the authority of the law,whatever it may be, relating to the execution of judgments. TheOrdinance enables the Court to protect the insolvent either .tempo-rarily or permanently against execution by imprisonment, to whichthe insolvent, but for such protection, would be liable under the law,which corresponded to the execution sections of the Civil ProcedureCode.
When the Court has finally refused further protection, section 152comes into play. The assignee and the creditor are relegated totheir ordinary civil remedy, and may enforce a “ writ of execution ”against the body of the insolvent. The expression 11 writ ofexecution '* connotes execution by ordinary civil process.
An insolvent cannot, therefore, with any propriety be said to bearrested or imprisoned under the Insolvency Ordinance; the arrestand imprisonment of all debtors under civil process are now underthe authority of the Civil Procedure Code. All essential matterswith regard to the imprisonment of insolvents, such as the issue ofwarrants of arrest, the conditions under whichj the warrant may beexecuted, and the subsistence of the person, are regulated by theCivil Procedure Code.
The Insolvency Ordinance provides for the protection of theinsolvent in certain cases from execution against the person; itcontains certain provisions which are not consistent with our presentCode of Civil Procedure, so that the provisions of the Code withreference to the imprisonment of insolvents must be read with thenecessary modifications. But when we come to the question whetherthe imprisonment is under the authority of the Insolvency Ordinanceor under the authority of the Civil Procedure Code, it is clear to methat it is under the authority of the latter enactment.
For the above reasons I would set aside the order of the learnedDistrict Judge and order the insolvent to be discharged fromcustody.
The respondent must pay the costs of the appeal and of themotion in the Court below.
In this case the appellant, an insolvent debtor, had been arrestedon a warrant issued under section 152 of Ordinance No. 7 of 185o,after a certificate in form R withdrawing protection from arrest inexecution had been issued. He pleaded that he was an Indian coolvexempt from-arrest in execution of a decree for money by virtue ofOrdinance No. 9 of 1909. That Ordinance introduced a new section19 into Ordinance No. 13 of 1899, which runs: “ No kangani,subordinate kangani, or labourer shall be liable to arrest under theprovisions of the Civil Procedure Code, 1899, in execution of a decree
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1814.for money.*' The learned District Judge held that this section only
I3hki8 j. dealt with arrests under the Civil Procedure Code, and had nothingwith arrests under section 152 of the Insolvency Ordinance,and he refused to release the insolvent. The appeal is from thisorder.
The question to be decided is whether the exemption from arrestprovided for by section 19 of Ordinance No. 19 of 1899 is affectedby the Insolvency Ordinance. In De Vos'* case, 1 where the house ofthe insolvent was broken into to effect an arrest, which was contraryto the provisions of section 866 of the Civil Procedure Code, but inaccordance with section 35 of the Insolvency Ordinance, it was heldthat the arrest was not under a warrant of Court as referred to insection 85 of the Insolvency Ordinance, but was an arrest under anordinary writ of execution against the body of the insolvent, whichmust be executed in the way provided for by the Civil ProcedureCode for such arrests.
Section 4 of the Civil Procedure Code provided that nothing inthe Code'should affect or modify any special rules of procedure underany Ordinance then in force, save so far as they were expresslyrepealed or modified by the Code. The special procedure relatingto arrests in the Insolvency Ordinance is the exemption of allinsolvent debtors from arrest in execution until the protection iswithdrawn by the issue'of a certificate in form B, and there is theprocedure under section 162 by which .the warrant may be issued bythe Secretary of .the Court on production .to him of the certificatein form B.
The warrant would be an ordinary warrant of arrest in executionof a decree for money, for it is against this that the InsolvencyOrdinance gives protection and provides for the withdrawal of theprotection in certain cases. It would be enforceable under the CivilProcedure Code in all respects in which the Insolvency ..Ordinancedoes not provide a special procedure .to the contrary. The CivilProcedure Code contains several sections providing for exemptionsfrom arrest, and in Piens'% case2 the Supreme Court held that aperson exempt from arrest under section 834 could not be re-triedin the circumstances provided by that section, on a warrant ofarrest in execution issued by a Court exercising jurisdiction ininsolvency.
For these reasons it seems to me that the exemption from arrestnow found in section 19 of Ordinance No. 13 of 1899 is not affectedby the Insolvency Ordinance.
I would set aside the order appealed from and release the appellant.
* (1900) 1 Br. J.
i 2 Br. 867.
RAMASAMY v. CHETTY