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VELLIAPPA v. PEIRIS et al.C., Colombo, 9,640.
•Judgment-debtor—Discharge from custody—Application-under 8. 306 ofthe Civil Procedure Code—Civil Procedure Code, ss. 307 and 311.
Where a judgment-debtor undergoing imprisonment in execution-of a decree applies for his discharge from custody under section 306of the Civil Procedure Code, on the ground that he has no propertywhich can be sold in execution of the decree, he must make oathas to non-commission by him of the acts specified in sub-sections(b) and (c) of section 311.
TN this case the respondent, who was undergoing imprisonmentin execution of a decree, applied to the Court under section306 of the Civil Procedure Code for his discharge. With his petitionhe filed an affidavit, which complied with the requirementsof section 307, but he omitted to state in it that he had notcommitted the acts mentioned in sub-sections (6) and (c) of section311. At the hearing of the petition he was not questioned eitherby the Court or counsel for either party as to the non-commissionof these acts. The Court allow his application and ordered hisdischarge. In appeal by the execution-creditor—
Sampayo, for appeallant.
19th August, 1897. Withebs, J.—
. I think the District Judge has made his older of discharge oninsufficient material. The person discharged was in custody asa judgment-debtor, whose person was seized in execution of ajudgment held by the plaintiff. He was committed in due courseto jail, and after being some little time in custody he petitioned theCourt under section 306 of the Civil Procedure Code to bedischarged, on the ground that he had no property which could besold in execution of the decree. He ought to swear that since theinstitution of the action he has not, with intent to defraud hisjudgment-creditor, concealed, transferred, or removed any part ofhis property, and further mat he has not committed any act ofbad faith regarding the matter of his petition. The Court has tobe satisfied of those two existing state of facts, and the Judgewould expect and require a person, though they are negative stateof facts, to swear to their non-existence. I think in this case theJudge ought to cause the debtor to be brought before him and
ask him to state on oath that he has not done either of the thingsmentioned in sub-sections (6) and (c) of section 311 of the CivilProcedure Code. If the Court is still satisfied that the debtor shouldbe released the order will stand, if not, the order must be set asideand the man remitted to custody.
Bbowne, A.J., agreed.
VELLIAPPA v. PEIRISet al