( 819 )
Present: Pereira 3.
COSTA o. PERERA et al.196—C. R. Colombo, 17,669.
Arrest.—Warrant issued without compliance with the requirements ofsection SU8, Civil Procedure Code—No jurisdiction to commit tojail.
. Where an execution-debtor was arrested on a warrant issuedwithout compliance with the requirements of section 298 of theCivil Procedure Code and brought before the Court,—
Held, the Court had no jurisdiction to commit him to jail eventhough he had been notified to show cause why he should not becommitted, and had shown none.
^1 HE facts appear in the judgment.
A. St. V. Jayewardene, for second defendant, appellant.
Andanandam, for plaintiff, respondent.
Cur. adv. vult.
1 7 Hiderf 222.
( 320 )
July 1, 1913. PbREIRA J;—
This is ail appeal by the second defendant from an order of theCommissioner committing him to jail for default of payment ofthe amount of the judgment'entered against him. Such an ordercould ordinarily be made only under section 304 of the Civil Pro-cedure Code; but before such an order is made the Code lays down,certain preliminaries to be observed. Such an order can only -bemade if .the debtor had been arrested and brought before the Courton a warrant duly issued under section 298, and such a warrant canonly be issued where there is a return by the Fiscal of nulla bona tothe writ against property issued to him for execution, or where thejudgment-creditor has satisfied the Court of the existqpce of anyone of the four conditions mentioned in the section. The Court’sjurisdiction to issue a warrant is dependent upon compliance withthe requirements of section 298,. and as those requirements havenot been complied with in the present case the warrant was bad,and no commitment thereon could be justified. It has been saidthat the debtor was notified to show cause why he should not becommitted to jail, and he showed none. Clearly, the Court couldnot substitute this rough and ready mqthod of procedure for that-laid down in section 298. Penal laws are even at the present day,in many senses, to be construed strictly, and it has been held thatan enactment giving a power of committal for non-payment ofdebt is a ” highly penal one ” (see Scott v. Morley 1 In re Gardner 2).In the former case Lord Esher M.C. observed :If you treat the
Debtors Act as an Act which authorizes the Court to commit peopleto prison, then, you must construe it strictly. It is a highly penalact, affecting the liberty of the subject.”
I set aside the order appealed from, with costs.
1 20 Q. B. D. 120.
* 20 Q. B. r>. 240.
COSTA v. PERERA et al