KEUNEMAN J.—Gnanampirakar-Ammai v. Candiah.
1941Present: Howard CJ. and Keuneman J.
GNANAMPIRAKAR-AMMAI v. CANDIAH.
78—D. C. (Inty.), Jaffna, 3,645.
Arrest of debtor in execution of decree for money—Inquiry essential beforeissue of warrant—Decree for payment of alimony—Civil ProcedureCode, ss. 298, 299, and 301—Ordinance No. 4 of 1940.
The District Judge is bound to hold an inquiry before the issue of awarrant under section 298 or a notice under section 299 of the CivilProcedure Code.
Where the defendant was arrested in execution of a decree for thepayment, of Rs. 50 per mensem as permanent alimony.
Held, that the arrest was not justified by the terms of section 301 ofthe Civil Procedure Code.
^ PPEAL from an order of the District Judge of Jaffna.
H. V. Perera, K. C. (with him N. Nadarajah and A. C. Nadarajah), fordefendant, appellant.
N. E. Weerasooria, K. C. (with him M. Balasunderam), for plaintiff,respondent.
Cur. adv. viilt.
February 19, 1941. Keuneman J.—
The defendant appeals against the order of the learned District Judgecommitting him to jail under section 308 of the Civil Procedure Codefor a period of six months.
This matter comes up for consideration under Ordinance No. 4 of 1940,by which sections 298 to 312 of the Civil Procedure Code (Cap. 86) wererepealed and the new sections 298 to 312 enacted.
The plaintiff and defendant were wife and husband. In this action,the plaintiff obtained on July 31, 1935, a decree nisi for divorce, whichwas made absolute on April 12, 1937. The decree also dealt with per-manent alimony and costs, the relevant portions of which are as follows : —“ And it is further decreed that the defendant do pay to the plaintiffRupees Fifty (Rs. 50) per mensem as permanent alimony to be appliedtowards the maintenance of the plaintiff and that this allowance isto continue until further order and be subject to variation as futurecircumstances may require.
And it is further ordered that the defendant do pay to the plaintiffher costs of this action as taxed by the Officer of the Court.”
On April 8, 1940, the proctor for the plaintiff filed petition and affidavitand moved for a warrant against the defendant. The District Judgemade the following order : —
“ Notice under the new section 299 is allowed on the affidavit. Issueof warrant will be considered if no service is effected.”
Later, the defendant appeared and' filed objections and, after inquiry,the District Judge made the order appealed against.
286KEUNEMAN J.—Gnanampirakar-Ammai t>. Candiah.
Objection is taken to this order on two grounds, (1) that the DistrictJudge failed to hold the inquiry required by section 298 (1), beforeissue of notice under section 299, and (2) that the decree was for a sumless than Rs. 200 and that no warrant could be issued—vide section 301.
As regards (1) (supra), I think it is clear law that, before the issue of awarrant under section 298, or a notice under section 299, the Courtmust hold “ such inquiry as the Court may deem necessary I do notaccept the argument of Mr. Weerasooria tliat the District Judge will holdthe inquiry only if he thinks it necessary. In my opinion the sectionpostulates the necessity of an inquiry in any case, but leaves the natureand scope of the inquiry to the discretion of the District Judge. Cer-tainly, no lesser or different form of inquiry is needed where a notice isissued under section 299. One can well understand that, before takingany step in respect of these penal provisions, the District Judge is requiredto satisfy himself by inquiry that the step should be taken. Further,
I do not think that the mere perusal of the petition and affidavit is asufficient inquiry. Under section 300, the petition and affidavit arenecessary ingredients of the application, and the application cannot beentertained in the absence of the petition and affidavit.
Mr. Weerasooria further argued that this particular objection was nottaken in the Court below, and must be regarded as waived. Ordinarily,this would be regarded as a point of substance, but where, as in thiscase, there is strong internal evidence to show how the District Judgeacted, and where it is manifest that he did not hold the inquiry whichis required under the section, I do not think we are precluded fromconsidering an objection although it is taken for the first time in appeal.In dealing with these penal sections, I think it is open to the party affectedby the order to show that the correct procedure has not been followed,where a failure to do so would have a bearing on the jurisdiction of the. Judge to make the order—cf. Costa v. Perera1.
In his order of April 8, 1940, the District Judge allowed notice “on theaffidavit”. I think this indicates that the only action taken by theJudge was a perusal of the affidavit and, it may be, the petition. Nofurther inquiry of any sort appears to have been undertaken. The Judgefurther says that “ the issue of warrant will be considered if no serviceis effected”. I think this shows a complete misconception of the scopeof section 299., Under that section, the notice on the judgment-debtoris “ to show cause …. why he should not be committed to jail. . . . ”. Section 299 is an alternative to the immediate issueof a warrant for arrest. The notice under section 299 does not contem-plate a further inquiry preparatory to the issue of a warrant.
Mr. H. V. Perera argued, I think convincingly, that the Judge thoughtthat there was another occasion to satisfy himself before the issue of thewarrant, and therefore did not take the trouble to hold any inquirybefore issuing notice. The District Judge does not appear to haveappreciated the fact that the inquiry was essential, before either the issueof the warrant or the notice. The same misconception seems to nmthrough the whole of his order in the present matter. For example,he says, “ The defendant appears in Court in response to a notice under
' 17 N.L. R. 219.
KEUNEMAN J.—Gnanampirakar Ammai v. Candiah.
section 298 of the Civil Procedure Code to show cause why a warrantof arrest should not be issued against him”. Not only is the wrongsection mentioned, but also the scope of section 299 is misunderstood.He further says, “ This is a case in which a warrant should issue on thedefendant under section 298 ”, but at the end of his order he says, “ Icommit the judgment-debtor to jail under the proviso to section 308of the Civil Procedure Code for a period of six months ”.
The proviso to section 308 is as follows : —
“If …. the Court is satisfied that a warrant for the arrest
of the judgment-debtor may be issued on any ground other than that onwhich the warrant or notice was issued in the first instance, the Courtmay commit the judgment-debtor to jail.”
This refers to an inquiry at the stage where the judgment-debtor isbrought before the Court after arrest on a warrant or appears in Courtin pursuance of a notice under section 299—vide section 306.
The matter of importance is that the District Judge did not satisfy himselfby holding an inquiry before the issue of the notice under section 299.At the later inquiry, he satisfied himself on material, at any rate partlynot contained in the affidavit. I think the procedure adopted by theDistrict Judge was wrong and misconceived, and that the appellantis entitled to succeed on this point.
The further point taken by Mr. H. V. Perera is based on section 301which is as follows : —
“ No warrant under section 298 or notice under section 299 shall beissued in any case in which the sum awarded in the decree inclusiveof interest, if any, up to the date of the decree but exclusive of anyfurther interest and costs, is less than two hundred rupees.”
The short point is that the sum awarded in the decree is less than twohundred rupees. The words, “ in the decree ”, in this section are newand, I think, emphasize the fact that the decree alone is to be looked atfor the purpose of determining whether the sum awarded is less thantwo hundred rupees. A case like the present is to be clearly distinguishedfrom a case where, for example, a decree is entered for the sum ofRs. 1,000, payable by monthly instalments of Rs. 100. I cannot agree withthe argument of Mr. Weerasooria that what has to be taken into accountis the sum which at any time is found due under the decree. I do notthink the words, “ the sum awarded in the decree ”, can be given suchan interpretation. In this case, the subsequent payments are contingentand are not certainly payable. This is inherent in the terms of the decreeitself, and also in the nature of the alimony—cf. Sithayamma v. Sinniah If we examine this decree, the only sum awarded which can be regardedas certain is Rs. 50. I think the appellant is entitled to succeed onthis point as well.
Mr. Weerasooria argued that apart from the sum awarded in the decree .his client had an order for costs which had been taxed at a sum con-siderably over Rs. 200, and that he could base his application for a warranton that. Counsel relied upon the judgment of the Divisional Court in
» 39 N. Tj. R. 126.
KEUNEMAN J.—6nowatnji PWfc 11 r-Ammai v. Candiah.
Ran Menika v. Dingiri Menika1 for the proposition that an order forcosts amounting to more than Rs. 200 is enforceable by attachment of theperson. This decision was based upon the older sections of the Code,and it is a matter for argument whether, in view of the amendment ofsection 298, that decision is still applicable. I do not propose, however,to deal with that matter, because in this case no mention of the fact thatthe costs amounted to more than Rs. 200 was made in the affidavit, andfurther, the District Judge has not rested his decision upon any suchfact. Indeed, although some argument was addressed to him on thispoint, the District Judge did not deal with it at all, and I do not thinkwe. are justified in taking cognizance, of any such fact in appeal.
I allow the appeal and set aside the order of the District Judge. Inview of the relationship which existed between the parties, I make noorder for costs in appeal or in the Court below.
Howard C.J.—I agree.
1 25 N. L. B. 465.
GNANAMPIRAKAR – AMMAI v. CANDIAH