071-NLR-NLR-V-06-EPHRAIMS-v.-SILVA.pdf
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EPHRAIM S v. SILVA.D. G„ Galle, 3,854.
1903.May 5-
Civil Procedure Code, s. 337—Issue of writ of execution—Return of property—Failure of creditor to examine debtor under s. 219—Second issue of writ.
A judgment-creditor is not entitled to a second issne of writ of execu-tion if on the first issne no property of the debtor has been fonnd,and the creditor has failed to examine the debtor under section 219 and.to apply for writ against his person.
j HE plaintiff, on 21st February, 1896, obtained a decree for
Rs. 240, with interest on a promissory note against the
defendant. He issued writ against property on 30th June, 1896.The Fiscal made return on 5th August, 1896, that he had beenunable to find' any property belonging to the judgment-debtor..No further steps in execution were taken till 29th October, 1902,when the plaintiff in his affidavit averred thafr on the last occasionhe used due diligence to obtain complete satisfaction of the-amount due under the decree; that he did not issue writ again, as-the defendant was not possessed of means; and that the defendantwas now employed, and had since such employment acquiredproperty. He applied for re-issue of the writ against property.
Notice of the application was served on ‘ the debtor, whoappeared and contended that plaintiff had not used due diligence-on the previous issue of the writ. He stated by affidavit that atthe time of the previous issue of the writ he was possessed Of
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1908. property which had subsequently been sold in execution byMay 6. another creditor.' The plaintiff proved that the defendant hadobtained employment in 1902, and had made him small paymentson account in September, October, and November, 1902, but thesepayments had not been certified to the Court.
The District Judge (Mr. J. D. Mason), finding that the plaintiffhad not on the first issue of the writ availed himself of either ofthe modes of obtaining satisfaction of the decree pointed out bythe Supreme Court in Palaniappa Chetty v. Gomes (1 N. L. B.366), refused to allow the re-issue of the writ.
The plaintiff appealed.
W. Jayawardene, for appellant.
H. A. Jayawardene, for respondent.
5th May, 1903. Layard, C.J.—
It appears to me that we are. bound by the judgment of thisCourt in the case of Palaniappa Chetty v. Gomes, reported in1 N. L. R. 357, and in view of that judgment the appellant is notentitled to re-issue his writ. The appeal must be dismissed withcosts.
Wendt, J., agreed.
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