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SINNAPPAR v. VEERAPODI el. al,
D. C., Batticaloa, 21,434.
Old decree—Application for execution against property—Civil ProcedureCode, s. 298—Issue of writ of execution against person before-return of writ against property—Recall of writ against person—■Effect of order of Supreme Court made per inouriam.
Section 298 of the Civil Procedure Code does not mean, that awrit, of execution against the person of the judgment-debtorcannot be issued before a return to the writ against propertyhas been made.
It is competent to the District Court to issue a warrant for thoarrest of the judgment-debtor, if before the return to the writagainst his property the Court is satisfied that one of the cases(a), (6), (c), and (d) mentioned in section 298 had occurred.
Where a decree was signed in 1880 and several applicationsagainst the property of the debtor were allowed without resultingin satisfaction of the decree, and after an interval of many yearsa fresh application for the issue of a writ against property wasmade in 1897 and the District Court refused it; and where theSupreme Court per incurknn set aside that order and allowed writagainst property to issue, on the assumption'that the originaldecree was signed in 1893 and revived in later times, whereasin truth it was signed in 1880 and had not been revived for severalyears ; and where the writ allowed by the Supreme Court -wasmade returnable on 18th June, 1898, but before the return wasmade the execution-creditor applied for and obtained from theDistrict Court under section 298 a writ against the person of thejudgment-debtor ; and where the debtor applied to the Court fora recall of that writ and his motion was allowed—
Held, that the order recalling the writ against person was good ;that the writ against property should not have issued ; and thewrit against person, which was ancillary to the writ againstproperty, ought not to issue.
Held, further, that, though the Supreme Court had by itsorder of 13th July, 1897, directed the issue of the writ againstproperty, such order having been made pert incuriam made nodifference in principle.
Soysa v. Soysa (1 S. C. R. 29) overruled.
^HIS was an appeal against an order made by the DistrictJudge of Batticaloa recalling a writ of execution against the
person of the respondent under the following circumstances.
The decree was signed in 1880. Several applications forexecution were made and granted, which, however, did not resultin satisfaction of the decree. After the Civil Procedure Code of1889 came into operation a further application for executionagainst property was made and allowed. No steps were taken toenforce that execution, owing, it was stated, to the judgment-debtorhaving requested the forbearance of the execution-creditor. In1897 a fresh application for the issue of a writ against property was
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made, which was refused by the District Court, and the execution- 1898.creditor appealed to the Supreme Court. The executiou-debtor September28.did not appear in appeal. The Supreme Court reversed thedecision of the District Court and ordered the writ to issue. Thewrit was accordingly issued, returnable on the 18th June, 1898.
Before the return to the writ was made the execution-creditorapplied under section 298 for the issue of a writ against the personof the execution-debtor, and having satisfied the Court that oneof the cases (a), (b), (c), and (d) mentioned in that section hadoccurred, the Court allowed a writ of execution against the personof the debtor. Before that writ was executed the debtor appliedto the District Court to recall its order, and the District Judgehaving allowed the motion, plaintiff preferred this appeal.
Wendt, for appellant.
Domhor-st (with Sampayo), for respondent.
28th September, 1898. Bonser, 0..J. (after setting forth thefacts material to the present appeal):—
I am of opinion that the order of the District Judge was right,but I do not agree with the reasons on which the District Judgebases that order. His principal reason was that the applicationfor the issue of the writ was made before the writ of executionagainst the property had been returned by the Fiscal, and he heldthat to be a fatal objection. He relied upon some words whichwere contained in a judgment of Chief Justice Burnside in thecase of Soysa v. Soysa (1 S. C. R. ~J9), where the Chief Justiceis reported to have said :—“ The person of a judgment-debtor is“ only liable to be taken in execution after execution against“ property has been returned in one of the returns (a), (6), (c), (d)“ prescribed in the 298th section.”
It is quite clear that there must be some mistake in the report.That passage is in itself unintelligible. The Acting District Judgehas construed it to mean that a writ of execution against aperson cannot be issued before a return to a writ of executionagainst property has been made. Whatever the meaning of thepassage may be, it cannot mean that, for such a construction wouldbe opposed to the plain words of section 298, which provides thatif “ before the return to the writ of execution is made ” the Courtis satisfied, on the application of the judgment-creditor made bypetition, that any one of certain states of facts specified under thatsection has occurred, the Court may issue a warrant for the arrestof the judgment-debtor. The view of the Acting District Judgewould require us to read in section 298 the word “ after ” instead
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1898. of the word “ before." The District Judge gives a further reason.September 28. He said :—“ Moreover, the writ against property having expired,Bonsbr C.J. " *^ere should have been a fresh application for execution.” Imust confess myself unable to understand what is meant by thewords I have just read. I do not know what he means by the writagainst property having expired. The application was made onthe 15th June. The returnable date of the writ was the 18th June.
But, as I said before, I ani of opinion that the order was right,and for this reason : it seems to me that this case is almost on allfours with the case of Meera Saibo v. Samaranayaka (l N. L. R.■142) decided by my brothers Withbbs and Lawrie. In that casean application had been made for execution of a decree, whichwas more than ten years old, as in this case. That applicationhad been allowed by the District Court, and then that writ havingproved ineffectual, a further application was made, as in this casefor writ against the person.
This Court held that there having been in that case an appli-cation for the issue of a writ against property to which theapplication for a writ against person was ancillary, that order bythe District Court for the issue of the writ against property oughtnot to have been allowed, and that, therefore, the subsequentapplication for a writ against person ought not to have beengranted. Now, the only difference between that case and thepresent one is this, that in that case the second application for awrit against property was granted bv this Court overruling thedecision of the District Court. I do not think that that makesany difference in principle. If a decree improvide emanat, it doesnot matter whether it issues from this Court or a District Court.
My hrether Withers, who presided in the Supreme Court whenthe erder allowing the second application was made, informs methat the fact that a previous application had been allowed andthat the decree was more than ten years old at the date of theapplication were not brought to the knowledge of the Court; thatif they had been so brought, the order of the Court would nothave been made. I think, therefore, that as a necessary conse-quence it follows that, being of opinion that the order for issuinga writ against propert/'ought not to have been executed, the writagainst person, which is ancillary to that writ, ought not to issue.
I quite agree with the Chief Justice that the order appealedfrom must be affirmed, for the reason that the judgment ofthis Court of the 13th July, 1897, was made per incuriam, andought not to have been made under the circumstances.
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No one appeared for the judgment-debtor on the formeroccasion. The only point pressed upon vs by the appellant wasthat he had not been wanting in diligence and had not applied forexecution, because the judgment-debtor had specially requestedhim to postpone the execution on the promise that he would makesome payment if he did so.
It is clear when I wrote the judgment and referred to the“ decree of the 15th December, 1893,” that I was labouring underan erroneous idea,—either that the decree itself was comparativelymodem or had been revived in comparatively modem times.
I venture to think that, if my attention had been called to thefact that the original decree had been made in 1880 withoutrevival, I should not have made the order of the 13th July, 1897.
September 28,Withers, J.
SINNAPPAR v. VEERAPODI et al