081-NLR-NLR-V-51-KARUNADASA-Appellant-and-YOOSOOF-Respondent.pdf
1949
WTtTOHAtt J.—-Karunadcua v. Toonoof
Present: Jaye'.lleke S.P.J. and Windham I.KARUNADASA, Appellant, and YOOSOOF, RespondentS, C. 101—D. a. (Inly.) Colombo, 19,201M
Civil Procedure Code—Application for mandate of sequestration beforejudgment—Allegations in petition—Nature of facte to be alleged—Neednot be within the knowledge of party—Sections 181 and 653.
In an application for a mandate of sequestration before judgment,the facts which the petitioner is required to allege need not be such ashe is able to testify to of his own knowledge and observation. Theymay bo merely statements of his belief provided he gives reasonablegrounds for such belief. An allegation that the defendant is preparingto do something is a sufficient allegation of fact within the moaning ofsections 181 and 653 of the Civil Procedure Code.
.A.PPEAL from a judgment of the District Court, Colombo.
H. V. Perera, K.C., with E. B. Wikramanayake, K.C., and Tit usGoonetilleke, for defendant appellant.
N. E. Weerasooria, K.C., with V. A. Kandiah, for plaintiff respondent.
January 26, 1949. Windham J.—
The defendant-appellant appeals against a mandate of sequestrationissued by the learned District Judge under section 053 of the CivilProcedure Code. The ground of appeal is that the affidavit in supportof the plaintiff-respondent’s petition for the mandate, while allegingthat the defendant was fraudulently alienating his properties with intentto avoid paying the amount due to the plaintiff, did not contain anyallegations of fact from which the court might infer such fraudulentalienation.
Now an examination of sections 653 and 181 of the Civil ProcedureCode makes two points clear. First, section 653 requires the affidavitto set out allegations of fact from which the judge may infer that thedefendant is fraudulently alienating his property with intent to avoidpayment of the debt or damage; that is to say, a mere statement in theaffidavit that the defendant is fraudulently alienating is not enough,—it isfor the court to infer fraudulent alienation, or not, from the allegationsof fact set out in the affidavit-. Secondly, since petitions undersection 653 arc interlocutory, the allegations of fact so set out in theaffidavit need only comply with the second part of section 181 of theCivil Procedure Code and not with the first part; that is to say theyneed not be such as the declarant is able of his own knowledge andobservation to testify to, but they may be merely statements of hisbelief, provided that reasonable grounds for such belief are 'set'Ybrthin the affidavit.
The position as I have set it forth with regard to both these points isrecognized in David & Co. t>. Albert Silva 1 and in Samarakoon v. Ponniah2.In both those cases the mandate was rightly dissolved because the
{1929) 31 N. L. R. 316.
• (1930) 32 S'. /,. R. 257.
WINDHAM <T.—Kurvnait‘im v. YooaoofU:i7
affidavit set out no grounds for the petitioner's belief that the defendantwas fraudulently alienating his property. Similarly in the earlier caseof K. Hing Appu v. Donchamy1, the writ of sequestration was set asidebeoause the supporting affidavit merely alleged that the “ defendantswere alienating the as.ots, and that unless sequestration were issuedhe would be unable to recover the debt due by the intestate to himIn short, the affidavit merely alleged as a fact the conclusion which it wasfor the judge to arrive at on the strength of further allegations of fact,and did not set out any such supporting allegations of fact.
In the present case, however, the affidavit does set out allegations offact from which the judge might infer the conclusion that the defendantwas fraudulently alienating his property. It sets out the same question*begging allegations that I have quotod from the affidavit in K. HingAppu v. Donchamy, but in addition i: contains the following, amongother, allegations with regard to the defendant, to whom monies hadbeen paid and further monies were to be paid, monthly, by Governmentas the purchase price of beef and liver sold to them by the defendant.Paragraph 6 of the affidavit states—“ The defendant is making prepara-tions to draw the amount payable this month; he has been trying toavoid meParagraph 8 states—“ The defendant is making preparations
t.o have the deposits with the Prisons Department transferred to otherpersons; he is making preparations to sell or put away his onlyimmovable property, No. 0, Campbell Terrace ”,
In my view these are allegations of fact sufficient to satisfy sections653 and 181 of the Civil Procedure Code, and to distinguish the presentcase from the earlier decisions which I have cited. It is argued for thedefendant, not without some force, that to state that a person is “ makingpreparations ” to transfer or sell property is again to state an opinion orinference rather than a fact, and that just as it was for the court and notthe plaintiff to infer fraudulent alienation from facts alleged, so itwould be for the court and not the plaintiff to decide whether specificacts alleged by the plaintiff constituted the “ making of preparations ”,and that therefore the allegation of such specific acts was essential. Butthis argument, though attractive, would lead to the logical conclusionthat the only facts permitted to be alleged in the affidavit under section653 would be the performance of specified physical movements inrelation to concrete objects; for allegations of all other kinds may beargued to involve some degree of montal inference from acts of thatphysical nature. T do not consider that the word “ facts ” in section653 is to be construed in so narrow a sense, or that, in the present case,it would require the plaintiff to state precisely what movements or actson the defendant's part constituted the ” preparations to sell” theparticular property named. To allege that somebody is preparingto do something is to allege a fact, and that is all that the section requires.
For these reasons I hold that the affidavit in support of the plaintiff'spetition complied with the requirements of sections 653 and 181 of theCivil Procedure Code. The appeal is accordingly dismissed with costs.
•Jaybtileke S.P.J.—I agree.
(1900) 1 Browne 370.
Appeal ditniiaseA.