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Present: Bertram C.J. and Garvin J.
SHELL TRANSPORT COMPANY DISSANAYAKE.160—D. 0. (Inty.)t Colombo10,753.
Civil warrant—Application for writ—Appeal pending—Stay of execution.
—Notice to judgment-debtor of application for warrant—Civil
Procedure Code, s. 763.
Where an application for (he execution of a money decree hadbeen granted, and the Fiscal had made a return of " no property,*'a warrant for the arrest of the judgment-debtor may be issuedwithout notice to him.
It is not competent to a Court to refuse a warrant for the arrestof a judgment-debtor merely on the ground that the latter haspreferred an appeal against the decree.
PPEAL from an order of the' District Judge of Colombodisallowing an application for a warrant of arrest of a
judgment-debtor. The plaintiff, appellant, obtained judgment onJuly 80, 1924. On the following day he applied for execution ofthe decree, and a writ was issued to the Fiscal. To this writ theFiscal made a return dated August 22, 1924, that he was unable to
Shtll Trans-port Co. v,Dissanayake
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find any property of the judgment-debtor. In the interval betweenthe issue of the* writ and the return, the defendant entered an appealagainst the judgment. On. August 28 an application was madefor the issue of a warrant, which was refused apparently on theground that an appeal had been preferred against the decree.
Chok8y, for plaintiff, appellant.
November 28, 1924. Bertram O.J.—
I agree with the judgment of my brother Garvin. The questionto be decided is by no means free from difficulty. Section 763 says-that in the case. of an application being made by the judgment-creditor for execution of a decree which is appealed against, thejudgment-debtor shall be made respondent. The ‘ question, there-fore, arises, Is an application under section 298 by way of petitionfor the arrest of a debtor an application for the execution of adecree? It is undoubtedly the case that arrest is a form ofexecution, and the Code freely refers to arrest as being ordered inexecution of a decree. See section 298 itself, *4 the arrest or*imprisonment of a woman, in execution of a money decree " thedecree or order in execution of which he is arrested, tf section 298;44 warrant for the arrest of a judgment-debtor in execution of adecree, ” section 298; 11 arrest in execution of a decree for money, ”section 300. Further, in section 224 itself, which deals with 4* theapplication for execution of the decree, ” it is required that the■application shall contain the following particulars, " the modein which the assistance of the Court is required whether ….by the* arrest and imprisonment of the person named in the applica-tion. ” On the face of these words in section 224, it is very difficultat first sight not to conclude that an application under section 298is an application for the execution of a decree.
It is impossible to harmonize with exactness the various provisionsof the Code on this subject. If we proceed from section 224 tosection 225, we find that the only form of execution therecontemplated is an execution by sale of property; neither that norany other immediately succeeding sections make any provision for■execution by arrest. This subject is Only reached in section 298,and it appears there that an. application for an arrest is necessarilya supplemental process, and cannot be entertained until a writ forthe seizure and sale of property has already issued.
There are in fact two forms of application for execution of a•decree: The first is the initial or general application, which isprimarily that which is contemplated in section 224, and the secondis a supplemental application, when the writ issued in pursuance ofthe original application has proved, or is likely to prove, ineffective.
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I agree with my brother Garvin that if the terms of section 763are carefully examined/ it is necessary to hold that in the contextin which the words are used, “ the application for execution of adecree " there referred to means the original initial application, andnot any subsequent supplemental application that may becomenecessary.
This is an appeal from an order of the District Judge disallowingan .application for a warrant of arrest against a judgment-debtor.The appellant, who is the plaintiff in the case, obtained judgmenton July 30, 1924. On the following day he applied for execution ofthe decree, and a writ for that purpose was duly issued to the Fiscal.By that writ the Fiscal was empowered to recover from thedefendant the sum of Rs. 7,341.93, and further damages at the ratesspecified therein, and for this purpose to seize and, if necessary,to sell the property of the defendant. To this writ the Fiscal madea return that he was unable to find any property of the judgment-debtor. This return is dated August 22, 1924. In the intervalbetween the issue of the writ of execution and the return abovereferred to, the defendant entered an appeal against the judgment.On August 28 an application was made for the issue of a warrantfor the arrest of the defendant. Upon this the District Jud^e hasendorsed: “ Let this await the decision of the appeal. ” Then onSeptember 3, 1924, a further application was made for the issue of awarrant, and this application after argument in support of it hadbeen heard was also disallowed. The learned District Judge hasnot stated the reason for his order which consists of the one word“ Refused. " Counsel for the appellant, who was the counsel whosupported the application in the Court below, informs us that thereason for the refusal so far as he understood was that the learnedDistrict Judge felt that, inasmuch as an appeal had been enteredagainst the judgment in execution of which the original writwas issued, he was for some reason precluded from directing thearrest of the debtor until the appeal was decided. Now the leadingprinciple relating to the issue of the execution of a decree underappeal is that it shall not be stayed by reason only of an appealhaving been preferred against the decree*’—these, are the openingwords of Chapter LIX. of the Civil Procedure Code, which dealswith the execution of decrees under appeal. It is competent for theperson who appeals from such a decree to move for a stay of execu-tion before the expiry of the time allowed for the appeal therefrom,and for the Court which passed the decree to order the stay ofexecution, provided that the Court is satisfied of the mattersreferred to in sub-sections (a), (i>), and (c) of section 761. No suchapplication has been made, and it would seeitf, therefore, that it is
Shell Trans-port Co, v.Dissanayake
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1924* not competent for the Court now to stay the execution of thisGarvin J decree merely on the ground that the debtor has preferred an appeal
against it. The sole remaining question is whether the judgment-
Co*T debtor should have been made a respondent to the application forDitmxnayake this warrant of arrest. Section 763 provides that in the case of anapplication for the execution of a writ which is appealed against thejudgment-debtor should be made respondent. Is an applicationfor a warrant of arrest made under the circumstances above detailedan application for the execution of a decree within the meaning ofsection 763? It must be observed that an application for theexecution of this decree which was a money decree had been madeand granted before any appeal had been taken. Is an applicationfor the issue of a warrant for the arrest of a judgment-debtor toenforce payment of a decree to execute which permission hasalready been granted, an application for the execution of a decreewithin the meaning of section 763? It is I think clear that the^ sole purpose of section 763 is to give the appellant an opportunity ofsatisfying the Court to which such an application is made thatthere are reasons why the judgment-creditor should not be permittedto execute his writ without giving security for the restitution ofany property taken in execution of the decree or for the payment ofthe value of such property, and for the due performance of thedecree or order of the Supreme Court. This implies that theapplication contemplated is the original application to execute thedecree by taking property of the judgment-debtor in satisfaction 'of the decree. An application for a warrant of arrest of tiiejudgment-debtor, where the decree sought to be executed is amoney decree*, can only be made after writ of execution by seizureand sale of property has already been issued, and subject to certainexceptions only after a return of ‘‘no property ” had been madeto that writ. The appellant is not seeking to^ take the property ofthe judgment-debtor, but as I have already observed is invokingthe assistance of the Court to. obtain satisfaction of his, decree byseizing the person of the judgment-debtor, and he is taking this stepbecause no property of the judgment-debtor has been found.
An application for a warrant of arrest made in these circumstancesis not, in my opinion, an application for the execution of a decreewithin the meaning of section 763, and no notice to the judgment-debtor is therefore necessary.
I would, therefore, allow the appeal and direct the issue of thewarrant applied for.
SHELL TRANSPORT COMPANY v. DISSANAYAKE