032-NLR-NLR-V-18-FERNANDO-v.-LATIBU.pdf
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Present : Wood Benton C.J. and De Sampayo A.J.
FERNANDO v. LATIBU.111—D. 0. GaUe, 7,329.
Re-issue of torit—Fraud—Evadingarrest—Timelimit—Civil Procedure
Code, s. 337,
The systematic evasion ofservice bya judgment-debtor is
'* fraud ” within the meaning of that term as used in the provisoto section 837, Civil Procedure Code, and it prevents the expiry ofthe statutory time limit from operating as a bar to a re-issue ofthe writ.
I
N this action decree was entered in favour of the appellant onMay 25, 1904, writ against .the property of the defendant
was thereafter issued on May 17, 1907, and the writ was returnedby the Fiscal with a report that .the defendant was possessed of noproperly.
On November 2, 1907, writ against person was issued againstthe defendant, but the Fiscal reported that he was in concealmentand could not have been arrested.
The writ against person was thereafter re-issued eight times, butthe defendant was in concealment, and successfully evaded arreston every occasion, in spite of all efforts made by the appellant tohave him arrested.
The appellant subsequently applied for a re-issue of writ againstperson of the defendant, and notice of such application having beenserved on the defendant, the same was on July 22, 1914, allowed,the defendant being absent though noticed for that date.
Writ against person was accordingly re-issued, and the defendantwas arrested thereon and produced in Court on August 10, 1914.The defendant then filed an affidavit stating that he was not possessedof property, and moved for his release from custody, and furtherobjected that as more than ten years had elapsed from the date ofthe decree, the writ against person should not have been re-issued.
After inquiry the learned District Judge held that the writ againstperson should not have been re-issued, and made order dischargingthe defendant from custody, with costs to be paid by the appellant.
De Soysa, for plaintiff, appellant.
No appearance for respondent. –
October 15, 1914. Wood Renton C.J.—
Cur, adv, vult.
It is unnecessary to consider one of the main points argued beforeus at the bearing of. this appeal, namely, whether the failure of .thedefendant-respondent .to appear on July 22,1914, and show cause
1914*
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1914- against the allowance of the appellant’s application to issue writWooD against him, precludes him at a later stage from raising any objec-BfntowC.J. tion to the validity of the order made in his absence. There is aFernando v. g°°d deal of authority which seems to point to the conclusion that,LaHbu if the facts had supported the appellant’s argument in regard tothis contention, this question would have had to be answered in thenormative. See Huhm Chand (p. 751, para. 296), Mungul Per shadDicliit v. Chija Kant Lahiri,l Manjunath Badrabhat v- VenkateskGovind Shanbhog, 2 * and Behari 'Lai v. Majid Alt. 9 But the datefixed for the appearance of the accused was July 21, and the casewas disposed of on the 22nd—a date for which he had not beencited to appear.
The appeal must, however, in my opinion^ succeed t uponanother point. It is clear that the defendant has for years, beenevading arrest. It has been held in India (see Annamalai a. Ranga-sami,4 Venkayya v. Raghava Charlu,5 Bhagu Jetha v. Maleic Bawa-saheb •) that the word “ fraud ” in the proviso to section 230 of theold Indian Code of Civil Procedure, which corresponds to the proviso .to section 337 of our own, should receive an extensive interpretation,and that the systematic evasion of service by a judgment-debtor is“ fraud ” for the purpose of the enactments in question, and preventstile expiry of the statutory time limit from operating as a bar to are-issue of the writ. The principle of these decisions is, in myopinion, sound.
I would set aside the order under appeal, and send the case backto the District Court to be dealt with on the basis of this judgment.The appellant is entitled to the costs of the appeal and of theproceedings in the District Court which led to the order appealedagainst.
Pe Sampayo A.J.—I am of the same opinion.
Set aside.
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1(1882) /. L. R. 8 Cal. 51.
2(2882) I. L. R. 6 Bout. 54.
9 (2887) /. L. R. 24 AU. 288.
4 (2883) /. L. B. 6 Mad. 385.
2 (2898) I. Lt B.28 Mad. 82Q.• (2885) J. L. B. 9 Bom. 328.