142-NLR-NLR-V-03-CARPEN-CHETTY-v.-LOUIS-SIEDLE.pdf
( 363 )
CARPEN CHETTY v. LOUIS SIEDLE.
D. G., Colombo, 11,884.
Practice—Judgment by default—Application of defendant to stay executionpending order on judgment-creditor to sell security left with him—Duty of court to suspend execution for purposes of inquiry.
A judgment-debtor who avers that his creditor holds movable
property belonging to him as security for the debt' is entitled to the •
protection of the court. It is the duty of the court to inquire intothe matter, and for that purpose to suspend execution.
If the judgment-debtor cannot point out any other property forexecution, the plaintiff may be called upon to surrender forexecution the property left with him. If he has no such property,or if the judgment-debtor has other available assets for execution,the court should dismiss his application to suspend execution.
P
LAINTIFF obtained a decree nisi for defendant’s default ofappearance and answer, and it was made absolute on 8th
December, 1898. On the 15th of that month execution was appliedfor, and on the 20th writ was issued returnable 20th August,
On the 23rd June the defendant applied to the Courtto stay execution proceedings and for an order on the plaintiff tosell so much of the gems of the defendant which the plaintiffheld in his hands as would satisfy the decree in the present action.
The defendant’s application was made by way of summaryprocedure. Plaintiff denied that he held any security, and theDistrict Judge declined to stay writ, pointing out that, if plaintiffhad any gems belonging to the defendant, the defendant couldpoint them out to the Fiscal for seizure.
Defendant appealed against the order of the Court below refusingto grant his application.
Dornhorst, for appellant.
Morgan, for respondent.
Cur. adv. vult.
28th August, 1899. Withers, J.—
This is a curious case, and without precedent, so far as I know.The defendant applied by way of summary procedure, and insupport of his petition put in an affidavit, in which he swore thathe had deposited with the plaintiff, to secure this very debt, preciousstones worth three times as much as the amount of the decree.His object was to have those stones sold in execution ofthe decree. Mr. Dornhorst, who appeared for the appellant, wasnot prepared to contend that the plaintiff was bound to realizethis asset in execution in preference to any other available asset,
30-
1899.
August 28.
( 364 )
,189B- which his client might have. But he did contend that he was
August 28. entitled to a stay of proceedings until those gems were produced,WmnsBS, J. bo that the appellant might surrender them to the Fiscal. Theappellant succeeded in obtaining an interlocutory order appoint-ing a day for the determination of the matter of the petition.The matter was discussed on the 18th July, and the ActingDistrict Judge declined to stay execution. He dismissed theapplication in these terms: “If plaintiff has any gems of the“ defendant in his possession, let the defendant point them out“ to the Fiscal.”
The defendant naturally asks, How can I point them out whenthey are locked up in the plaintiff’s safe or placed somewherewhere I cannot find them ? The plaintiff put in a counter-affidavit, in which he denied that the defendant had depositedany precious stones with him to secure the debt decreed, or forany other purpose whatever. I think this matter ought to bemore fully investigated, and I propose to return the record withthat intimation. If the defendant satisfies the Court that theplaintiff holds precious stones of his in pledge for this debt, thenI think that the Court ought to protect the judgment-debtor bysuch order as he may be advised to make. If the defendantcannot point out any other property for execution, then the plaintiffshould, I think, be called upon to surrender those gems orsome of them for execution if he has them. If the Courtdecides he has them not, or if the Court is satisfied that the defend-ant has other assets available for execution, he will dismiss theapplication. What the Fiscal has been doing with the writ inthe meantime we do not know. I have no doubt the Court willfind out in the course of the inquiry. We discharge the orderappealed from and remit the matter for further inquiry.
It was urged by the respondent’s counsel that the Civil ProcedureCode did not authorize such proceedings as these. It seems to methat the provisions of the 343rd section pointed out by my brotherduring the argument embraces a case of the kind.
Browne, A.J.—
I agree, and add only that the writ-holder having by his affidavitof denial raised an issue whether jewels had been hypothecatedwith him, the Court can, in my judgment, dispose of thatissue under section 344.
s'
I am glad we are able to make this order and give the debtora procedure correlative in a measure to that given to writ-holderby section 219. It may not be the only case in which it will benecessary.
( 365 )
The absence of the not uncommon answer that plaintiff holdssecurities, &c., and the period of eight months given for the execu-tion of this writ, is suggestive of further inquiries possible for thedecision of this very issue. The alleged hypothec to secure adebt of Rs. 2,000 principal and legal interest was of jewel’s valueRs. 8,300. If there was no hypothec, why was such time given ?If there was, was this originally a friendly action ?
1800.
August 28.
Browne,
A.J.