100-NLR-NLR-V-40-CADER-v.-JOONOOS-et-al.pdf
1938
Cttder v. Joonoos.
379
Present: Maartensz and Hearne JJ.
CADER v. JOONOOS et al.
201—D. C. Colombo, 47,499.
Execution of writ—Demand for payment of debt by Fiscal—Judgment-debtor'splace of residence—Civil Procedure, s. 226.
Where section 226 of the Civil Procedure directs the Fiscal to repair tothe judgment-debtor’s dwelling house or place of residence and to requirehim to pay the amount of the writ, there is a compliance with the provi-sions of the section if he repairs- to the place or residence disclosed bythe judgment-debtor himself.
asm) 34 L. J. E.c. 1TJ.- 11870) 4 A. C. 504.
– 14 .V. /,. R. 398.
380MAARTENSZ J.—Cader v. Joonoos.
^PPEAL from an order of the District Judge of Colombo.
C. Thiagalingam (with him Mahroof), for appellant.
N. Nadarajah (with him S. J. V. Chelvanayagam), for respondent.
Cur. adv. vult.
February 21, 1938. Maartensz J.—
This is an appeal by a purchaser at a sale in execution from an orderof the District Judge of Colombo, setting aside the sale on the groundthat the Fiscal’s Officer did not repair to the dwelling house or residenceof the judgment-debtor and require him to pay the amount of the writbefore proceeding to execute it as required by section 226 of the CivilProcedure Code.
The judgment-debtor was the second plaintiff in the action againstwhom an order for costs had been made. It appears from the evidencethat the Fiscal’s Officer entrusted with the execution of the writ went tothe address given by him in his plaint—No. 12, Peer Saibo’s lane (nowNo. 71)—to demand payment of the writ but did not find him there andproceeded to the execution of the writ.
The District Judge has accepted the evidence led by the judgment-debtor that at the time in question he was not living at No. 12 but atNo. 71, Peer Saibo’s lane. I am not prepared to interfere with thefinding of fact.
There is no evidence, however, that the judgment-debtor informedthe Court or the judgment-creditor, the defendant, that he had changedhis place of residence. The appellant’s Counsel accordingly contendedthat the Fiscal’s Officer had complied with the provisions of section 226and that he was not bound to search for the judgment-debtor any-where else before executing the writ.
The point has never been raised before and is not covered by authority.It is a" provision peculiar to the Code adapted from the old rules and ordersand there are no Indian or English decisions to assist us.
The section requires that the request for payment should be madeat 'the debtors’ dwelling house or place of residence. The words are.“ and there require him, if present, to pay the amount of the writ ".Strictly construed, if the Fiscal’s Officer met the judgment-debtoranywhere else and demanded payment, it would not be a compliancewith the section. . The debtor may therefore avoid execution of thewrit by continually changing his place of abode. I am, therefore, ofopinion that, in the absence of any information given to the Court of achange of residence, it would be sufficient _compliance with the termsof the section if the Fiscal’s Officer went to the place of residence men-tioned by the • debtor in "the plaint or answer. This view is consistenlwith the earlier provision in the section that the Fiscal or other officeishould repair to the house of the debtor within the time prescribed in thesection. The officer obviously could not comply with this provisiorunless the judgment-debtor’s place of abode had been ascertained a'the time the Fiscal received the writ of execution. In this case thaplace of residence is the one mentioned by the second plaintiff in hi:plaint.
HEARNE J.—Coder v. Joonoos.
381
As I am of opinion that the requirements of section 226 had been .complied with, the other questions argued by appellant need not bediscussed.
I would set aside the order appealed from. The second plaintiff-respondent will pay the appellant the costs of appeal. The DistrictJudge allowed the second plaintiff Rs. 52.50 as his costs of the inquiry ^The appellant will be entitled to recover the same amount from thesecond plaintiff as costs incurred in the Court below.
Hearne J.—
In execution of a decree for costs the defendant seized and sold aproperty belonging to the plaintiff. An application to set aside the salewas made to the trial Court and was refused. On appeal to this Court,by the plaintiff it was ordered that the application should be reconsideredunder section 344 of the Civil Procedure Code after the reception ofevidence by the plaintiff on the points raised by him. These points werethat the Fiscal had not repaired to the plaintiff’s house and required himto pay the amount of the writ and that there was collusion between thepurchaser and the defendant. The Judge found that the allegation ofcollusion was unsupported by evidence. He held, however, that theFiscal had not repaired to the house of the plaintiff, that the requirementsof section 226 of the Civil Procedure Code had not been complied "with,and that the sale was therefore bad. From this finding the purchaser hasnow appealed.
The evidence which this Court ordered to be recorded brought to lightcertain additional facts. It is now agreed that the Fiscal did not fail inhis duty in the sense that-he made no attempt to repair to the dwellinghouse or place of residence of the plaintiff, but that he went to the housewhich the plaintiff had mentioned (section 40, Civil Procedure Code) as hisplace of residence. The plaintiff, however, subsequent to the filing of hisplaint and unknown to the Fiscal had moved to a house a few doors away.The change of residence had not been communicated by him to theCourt.
The point for decision is whether there has been a compliance with section^226 of the Civil Procedure Code if the Fiscal goes to the place of residencedisclosed by the judgment-debtor himself or whether it is imperative, ifthe-judgment-debtor has changed his place of residence, that the Fiscalshould repair to what is, at that time, the dwelling house or place ofresidence of the judgment-debtor.
In my opinion it is not the function of the Court to keep itself constantlyacquainted with the movements of judgment-debtors. _ Nor is it the dutyof judgment-creditors -to do so. On application for execution beingmade under section 224 the judgment-creditor is not even required tostate the present address of the judgment-debtor. That has been suppliedby the judgment-debtor himself, whether he was the original plaintiff or -defendant, and is on the record of the case. The Legislature appears tohave contemplated that prior to execution a personal demand should bemaHp of the judgment-debtor, whenever it is practicable. For this reasonthe Fiscal is enjoined to repair to the judgment-debtor’s dwelling house orplace of residence. A dwelling house is a place of residence but a place
382DE KRETSER J.—Mohamed Anvar v. Arumuyam Chettiar.
of residence, for instance a residential club or hotel, would not be adwelling house in the usually accepted meaning of that term. Usuallythe two are the same and in my opinion when the law requires the Fiscalto repair to a judgment-debtor’s dwelling house or place of residencethere is a compliance with the law if he repairs to the place of residencedisclosed by the judgment-debtor himself. The direction in section 226which requires the Fiscal to act within a time which varies with thedistance from the Fiscal’s Office of the residence of a judgment-debtorpresupposes that it is a place of residence which is known to the Fiscaland not one regarding which he will be put upon inquiry.
If section 226-were read in the sense for which Counsel for the respondentcontended, viz., that if the judgment-debtor has moved from one dwellinghouse to another the Fiscal should ascertain the dwelling house to whichhe has moved and repair there, an absconding judgment-debtor (otherthan one who has left the Island in whose case special provisions apply)could indefinitely keep the judgment-creditor out of the fruits of hisdecree and the Court would be powerless to help him. Section 226 isdesigned to give a judgment-debtor an opportunity for satisfying a decreepassed against him instead of having his property sold. Its intention isnot to fetter a Court in enforcing its own decree against a dishonestjudgment-debtor.
In the present case the Fiscal went to the judgment-debtor’s “ place ofresidence ” and finding him absent acted under the second paragraph ofsection 226.
In my opinion the appeal should be allowed and the sale confirmed. Iagree with .the order as to costs proposed by my brother.
Appeal allowed.