084-NLR-NLR-V-41-ABEYWARDENE-v.-NONOHAMY.pdf
331
NIHILL, J.—Abeywardene v. Nonoliamy.
1939Present : Nihill J.
ABEYWARDENE v. NONOHAMY.91—C. R. Tangalla, 14,660.
Judgment-debtor—Application for discharge from custody—Undue preference tocreditor—Matter not relevant to inquiry—Civil Procedure Code, ss. 306—311. Cap. 86.
In an application by a jucl^ment-debtor for discharge from custody,
•the fact that he showed undue preference to another creditor before the
institution of the present action is not relevant under section 311 of the■ Civil Procedure Code.
Valliappa v. Pieries (.3 N. L. R. 31) followed.
^^PPEAL from a judgment of the Commissioner of Requests, Tangalla.
L. A. Rajapakse {with him A. C. Alles), for appellant.
C. V. Ranawake (with him H. A. Kottagoda), for respondent.
October 23, 1939. Nihill J.—
In this case the defendant-appellant was a judgment-debtor for a sumof Rs. 299.17 being in respect of goods sold and delivered. Six propertiesdisclosed by him pursuant to action taken under section 219 of the CivilProcedure Code were sold but realized only Rs. 16.38. Personal executionagainst him followed and on December 6, 1938, he was brought before the.Court under arrest. On the same day he'filed an affidavit and petitionfor his discharge from custody. (See section 306.) An inquiry was heldsubsequently by the learned Commissioner at which his petition fordischarge from prison was rejected.' .<
■ JO -V. /.. it. u.
'332NIHILL, J.—Abeywardene v. Nonohamy.
It is against this order that the defendant appeals. The question is,whether on the evidence, the Court was justified in coming to theconclusion that the judgment-debtor had not satisfied the requirementsof section 311 (1) (a), (b), and (c).
The learned Commissioner places in the forefront of his reasons thefact that just before the institution of the action by the creditor, thedebtor transferred two lands to his brother in order to pay off anotherpressing debt and he concludes that in doing so the debtor showed anundue and unreasonable preference to that creditor.
Now this is a consideration concerning which the Court might havetaken note, had it been raised at the proper time under section 299 (2),but it was not a matter pertinent to the consideration of the debtor’sapplication under section 311. Valliappa v. PieriesThis then byitself would not support the order made.
The learned Commissioner however also found that the judgment-debtorhas been carrying on a trade in paddy since the institution of the actionand decree, and that he has had the means to pay some part at least ofhis debt. This if established might vitiate the substantial truth of thedebtor’s averment that he is a pauper and it would then provide a properground for the rejection of his application.
In his evidence the debtor admitted that he does buy and sell paddybut he stated that he does so on his brother’s account who has a ricebusiness. He stated that he.^was not, in the/business jointly with his^brother and receives only a small share as salary.' •-‘7
Three witnesses were called for the judgment-creditor. I do not knowthat theis evidence is conclusive but I think there is in it material uponwhich the learned Commissioner could form the view that he evidentlydid, namely, that the debtor’s true position in the business is not as hehas stated.r…
'With regard to the non-payment of any portion of the debt other thanthe fractional amount satisfied by the sale of the debtor’s disclosedproperties, the debtor’s explanation is that he offered to pay by instal-ments of Rs. 5 per month in August but the offer was refused by thejudgment-creditor. This is admitted but as the present plaintiff-respondent is the administratrix of the original creditor’s estate, it isunderstandable that the offer was not attractive.
Furthermore, the debtor made no earlier effort to pay by instalments.(The decree was entered in January, 1936.)
The last reason given by the learned Commissioner is I think againstthe weight of evidence. It refers to a land transaction by the debtor'swife which the Commissioner regards as suspicious.
In the absence of any evidence to the contrary, however, I feel boundto accept the debtor’s statement that it was a transaction financed by hiswife’s mother with which he*had nothing to do and on which in any casehis wife lost heavily.
Although I have held that two of the reasons put forward by theCommissioner for his order are not sustainable, I am unable to say that,
' 3 -V. L. R. 31.
333
SOERTSZ S.P.J.—Ameresekere v. Caimangara.
taking the matter as a whole, he exercised his discretion wrongly.The debtor averred in his affidavit that he was a pauper and I think thatthere is evidence on which the Commissioner could come to the view thatthe debtor had not satisfied him with regard to the substantial truth ofthat statement.
I cannot therefore conclude that the order of the learned Commissionerwas wrong and this appeal must be dismissed with costs.
Appeal dismissed.