064-NLR-NLR-V-24-KALUHAMY-v.-MUDIANSE.pdf
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Present ; Bertram C.J.
ICALUHAMY a. MUDIANSE.
405^—P. C. Kurunegala, 5,90S.
Maintenance—Sentence of imprisonment for default of payment beforeissue of warrant of execution—Admission by defendant that he hasno property.
Before a .person ordered to pay maintenance ,under the Main-tenance Ordinanoe is sentenced to imprisonment for default ofpayment, warrant of execution under section 9 should be issued.
A sentence of imprisonment on his admission that he was notpossessed of immovable property was held io be irregular.
rp HE, facts appear from the judgment.
Sanderam, for appellant.
August 21, 1922. Bertram C.J.—
This is a maintenance case in which the learned Magistrate, havingbefore him a respondent who had failed to pay arrears ofmaintenance in accordance with the direction of the Court, on theadmission of the respondent that he was not possessed of immovableproperty, sentenced him to undergo one month’s rigorous imprison-ment, without having first issued a warrant of execution undersection 9 of the Maintenance Ordinance, No. 19 of 1889. Thelearned Magistrate appears to have overlooked the case of Corneliav. Sawodis,1 which settles the Iaw that such u procedure is irregular.The case must, therefore, go back for the learned Magistrate to dealwith it in regular course. As an affidavit has been filed allegingthat the wife had lived with the respondent from February 21. upto the middle of December, 1921, and, as this allegation, if true,may effect the amount of the arrears of the maintenance due fromthe respondent, the learned Magistrate will, before directing the issueof a warrant of execution, inquire into this allegation.
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Sent back.
1 (1908) 11 N. L. Jt. 289.