064-NLR-NLR-V-67-DHAMMINDHA-NAYAKA-THERO-Appellant-and-F.-J.-DIAS-Respondent.pdf
1965Present: Tambiah, J., and Sirimane, J.
DHAMMINDHA NAYAKA THERO, Appellant, and F. J. DIAS,
Respondent
S. 0. 354J64—D. C. Colombo, 781 jZ
Execution of decree for money—Issue of warrant for arrest of judgment-debtor—-“ Inquiry ” by Court previously—Civil Procedure Code, ss. 298, 308.
Where, in an application made under section 298 of the Civil Procedure Code,the Court issued a warrant on the judgment-debtor after considering theaffidavit of not only the judgment-creditor but also a relevant affidavit filedby the judgment-debtor on an earlier occasion when he made an applicationfor stay of writ—
Held, that these was an inquiry by the Court within the meaning of section298 of the Civil Procedure Code.
Appeal from an order of the District Court, Colombo.
H. V. Pmena* QX}., with Miss M/aur&eai &&neviratne, far the jala&ntiff-appellant.
<7. Panganafhan, with Bc&a Nadarajah, Tor the defendant-respondent.April 5, 1965. Tambiah, J.—
The plaintiff-appellant made an application under Section *298 of «0*eCivil Procedure Code for the issue of a warrant on the defendant-respondent. He filed petition and affidavit and, after setting out thefacts as alleged by him, in paragraph 15 the plaintiff-appellant statedthat “ the respondent has removed the property with intent to defraudhim and with intent to obstruct him in the execution of the decree.”This application was supported by Miss Maureen Seneviratne, whoappeared as counsel for the plaintiff-appellant.
On 2.8.63 the learned District Judge, having heard the submissionsmade by Miss Seneviratne, in addition to his perusal of the affidavitsfiled by the plaintiff as well as the defendant, in the course of his orderstated that he was satisfied that this is a case for the issue of warrantin terms of Section 298 of the Civil Procedure Code. He thereuponissued warrant on the defendant-respondent with bail endorsed inRe. 5,000/5,000 returnable 80.8.63.
Thereafter, the defendant-respondent filed objections and the mattercame up for inquiry under the provisions of Section 308 of the CivilProcedure Code. At this inquiry a preliminary objection was taken onbehalf of the defendant-respondent that no inquiry had been held asrequired by Section 298 of the Civil Procedure Code before the warrantwas issued. In support of his argument, counsel who appeared for thedefendant-respondent cited the case of Gnanampirakar-Ammai v. Kandiah1.In that case it was held that a mere perusal of the petition and affidavitfiled by the judgment-creditor is not sufficient inquiry under the provisionsof Section 298 of the Civil Procedure Code, before issue of warrant'Keuneman, J. (with whom Howard, C.J., agreed) took the view that‘f the District Judge in that case thought that there was another occasionto satisfy himself before the issue of the warrant and, therefore, did nottake the trouble to hold an inquiry before issuing notice.” The facts ofthat case are distinguishable from the present case. In making applica-tion for stay of writ on an earlier occasion, the defendant-respondentfiled an affidavit in which he stated that movable property worth aboutIts. 150,000 was lying in the premises, which is the subject matter of thissuit.
The learned District Judge appears to have considered the affidavitsof the parties as well as the submissions made by counsel for plaintiff-appellant before he was satisfied that warrant should issue.
The learned Judge, who held the inquiry under Section 308 of theCivil Procedure Code, dismissed the plaintiff-appellant’s applicationon the ground that no inquiry has been held before issue of warrant.I am of the view that the learned Judge has misdirected himself intaking this view.
For these reasons, I set aside the order of the learned District Judgedated 11.6.64 releasing the defendant-respondent from arrest and sendthe case back for inquiry under Section 308 of the Civil Procedure Codebefore another Judge.
The defendant-respondent is entitled to stand out on the bail alreadyordered, if the bail bond is still subsisting. Otherwise, the defendant-respondent is entitled to be released on his furnishing bail in a sum ofRs. 5,000 pending inquiry.
The plaintiff-appellant is entitled to costs of appeal and costs of inquiry.
S humane, J.—I agree.
Order set aside.
1 (1941) 42 N. L. R. 285.