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ANNAMALAY CHETTY v. GUNERATNE.
D. C., Negombo, 751.
Civil Procedure Code, e. 219—Order of Court upon judgment-debtor forattendance and examination—Disobedience of order—Liability of debtorto be pumehed for contempt of Court under chapter XVII. of the Code.
Disobedience by a judgment-debtor of an order made under section 219of the Civil Procedure Code to attend court for examination is notpunishable as a contempt of Court under chapter X Vii. of the Code.
rpHE defendant in thiB action, having received notice of anorder made by the District Court of Negombo undersection 219 of the Civil Procedure Code, requiring his attend-ance on a certain day for the purpose of being examined touchinghis means of satisfying the decree entered against him in the case,failed to comply with that order, and the plaintiff’s Proctor movedthat the Court do deal with him for contempt of Court undersections 137 and 141 of the Code.
The Court allowed summons against him, and on appearing hewas called upon to show cause why he should not be punishedfor contempt of Court in that he failed to comply with its orderrequiring his attendance on a certain date. The defendant pleadedsudden illness which overtook him on his way to the Court andprevented his attendance.
The District Judge disbelieved this excuse, and found thedefendant guilty of contempt of Court.
The defendant appealed.
Domhorst, for appellant.
31st January, 1895. Withers, J.—
We are of opinion that this order cannot be supported.
In the first place, we are of opinion that an order under section219 of the Civil Procedure Code cannot be made to relate back tothe provisions under chapter 17. So far as this matter iB concerned,ohapter 17 refers to the attendance of witnesses and partiessummoned to attend and give evidence in the cause. By the timewe reach section 219 the cause is over, but, to assist in the executionof a judgment, a debtor may be ordered to appear and disclose anydebts owing to him which may be reached in execution.
Now, it is noticeable that there is no provision in the Civil Pro-cedure Code for punishing a judgment-debtor who does not appearin obedience to an order under section 219. Similar cases havebeen expressly provided for in other parts of the Code. Take forinstance section 663, section 717, section 718, where disobedienceVOL. I."
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of an injunction or a certain decree or order of the kind mentionedin those sections may be enforced by the punishment of theoffender as for a contempt of Court. The civil Court’s jurisdictionto deal with offences of contempt is limited to the provisions ofsection 59 of the Courts Ordinance, No. 1 of 1889, and to specialprovisions in the Civil Procedure Code. Section 59 enacts that aDistrict Court may take cognizance of offences of contempt of Courtcommitted in the presence of the Court itself, and of all offenceswhich are committed in the course of any act or proceeding in thesaid Court, and which are declared by any law for the time beingin force to be punishable as contempts of Court.
Now, as we observed before, disobedience of an order by ajudgment-debtor of this kind is not made punishable as a contempt'of Court. If an offence has been committed, recourse must behad to the Penal Code, assuming the judgment-debtor’s conduct tobe oontrary to the penal provisions of that Code. The appeal suc-ceeds. The conviction is set aside, and the accused is acquitted.
I agree, and wish to add, as a suggestion for consideration infuture cases, whether the provisions of section 219 should beenforced in the first instance, as was done here, before issue ofwrit, without special grounds being made for the Court to allow it;for if the writ were presented, the debtor might pay it, and therewould be no need for the time of the Court to be occupied in theinquiry and the debtor to be put to the expense of attending. AsDistrict Judge, I required in a like case (3,934, D. C., Colombo)that plaintiff should make inquiry of the debtor living in NuwaraEliya of what property he was possessed, ere he should be allowedto put the defendant to the cost of attendance.
Lawrib, A.C.J.-1 concur.
ANNAMALAY CHETTY v. GUNERATNE