MOHIDIN v. NALLE TAMBY

111-NLR-NLR-V-01-MOHIDIN-v.-NALLE-TAMBY.pdf


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MOHIDIN v. NALLE TAMBY.
D. C., Kandy, 9,256.
Warrant of arrest—“ Court,” meaning of, as used in s. 298, Civil ProcedureCode—Committal and discharge of judgment-debtor—Order made inhis absence, and not in Court—“ Chambers," what it includes—Power ofDistrict Judge to re-issue warrant of arrest or issue fresh warrant.
Under section 298 of the Civil Procedure Code a judgment-debtorwhen arrested on a warrant of arrest should be brought before theCourt—
Held by Bonser, C.J., and Withers, J., that the word “court”there meant the place where the Judge was empowered to act judicially,and was in fact so acting.
Held further, that a District Judge had no power to order thecommittal or release of a judgment-debtor arrested on a warrant whenhe had not the debtor before him.
Per Bonser, C.J.—A District Judge cannot ordinarily exercise hisjudicial functions elsewhere than in open Court.
Per Lavi'rie, J.—(1) An order of commitment or release of a civilprisoner is a judicial act which can competently be done in chambers,and “chambers” includes the Judge's own house, if it is situated in thetown where his Court is.
(2) Where a Judge finds that he was in error in discharging ajudgment-debtor arrested on a warrant of arrest, and that the creditorhad used due diligence in the conduct of the warrant, he may issue afresh warrant or re-issue the old one.
r I iHE facts of the case sufficiently appear in the judgments oftheir Lordships.
Dornhorst, for appellant.
1st April, 1890. Withers, J.—
The facts of this case appear to be as follows :—
On the 19th August, 1895, the District Judge, on the appli-cation of the proctor for the execution-creditor, ordered a warrantfor the arrest of the judgment-debtor, on condition of a sum ofRs. 40 being deposited for the subsistence of the debtor from thetime of his arrest till ho could be brought before the Court.
That condition was fulfilled, and*on the 23rd of Septemberfollowing the warrant of arrest was issued.
According to a journal entry in the record, dated the 23rdNovember (following), the Deputy Fiscal of Trincoinalee producedthe body of the judgment-debtor arrested under the wan-ant. andthe Judge made and signed an order committing the debtor
to prison.
VOL. 1.
1896.
March 21 andApril 1.
3 C
ISM.
Mareh S7 and
April 1.
WlTHZBB, J.
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The same day the District Judge made and signed an orderdischarging the judgment-debtor, the reason for his doing sobeing that the stamp for commitment was not supplied.
On the 29th January, 1896, the execution-creditor’s proctorrepeated, after notice to the judgment-debtor, an applicationwhich he had made on the preceding 25th of November withoutsuch notice, for an order vacating the aforesaid order of discharge.
This application was discussed on the 10th of February following,and after hearing Mr Beven for the execution-creditor theDistrict Judge refused to vacate his previous order of discharge.
An appeal has been taken from the order refusing Mr. Beven’smotion.
The judgment-debtor was brought under the warrant of arrestto the court-house at Kandy. The Judge was not holding Courtat the time. He was in his house. The debtor was not broughtbefore him there. Being informed by the Secretary of his Courtthat the judgment-debtor had been brought up, and that he hadno cause to show against his committal, the District Judge madehis order of commitment. It afterwards transpired that no stamphad been supplied by the execution-creditor for the warrant ofcommittal. Thereupon (on the same day) the Judge ordered thedischarge from arrest of the judgment-debtor. This was some-thing more than vacating his order of committal.
In my opinion, the proper way to deal with this matter is toquash all the orders. The order which the District Judge refusedto vacate is obviously irregular. So is the order of committal.
A judgment-debtor when arrested under a civil warrant has tobe brought before the Court (i.e., of issue) with all convenientspeed if the judgment-debt and costs are not fully paid. What ismeant by the Court ? It surely means the place where the Judgeis acting judicially, and iB empowered to act judicially. Seesections 3 and 5 of 1 of 1889.
If the J udge was acting judicially when he made these orders,the debtor was not before him. If he was not before him, theJudge had no power to order either his committal or discharge.
For this reason I propose that we Bhould quash the two ordersof the 23rd November, 1895, and of the 10th February, 1896.
Lawrie, J.—
The District Judge of Kandy ordered the release from custodyof a civil debtor arrested under a warrant against person.
The order was obeyed, the man went #way.
Assuming that the order was wrong, what was the remedy ?
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Relying on the analogous case of discharge in criminal caseB, I 1896.am inclined to the opinion that an appeal was competent: if no
appeal lay, this Court had power to revise. In either case (appeal
or revision) if this Court had set aside the order of release, itwould have instructed the District Judge in what way he shouldcause the debtor to be again brought before him, so that the partiesmight be placed in the same position in which they stood at themoment before the order of release was made. Instead of appeal*ing or of asking that the order be revised, the decree-holder movedthe District Court to recall its order, and this, after some delay,the Court refused to do.
It is from that refusal that this appeal is taken.
I am of the opinion that the District Judge had no power torecall the order of release : it had been acted on. Granted thatthe Judge had made a mistake, it was a mistake which was beyondhis power to rectify, except by the issue of a warrant of arrest—and that he was not asked to do. He was only asked to crypeccavi. That was I think an inapt motion, one which wasrightly refused. As I have just said, the plaintiff might have askedthe District Judge to re-issue the warrant of arrest, and if theJudge had been satisfied that the error was his, and that the plain-tiff had shown due diligence in the conduct of the former warrant,he had power to issue a new warrant or to re-issue theold one.
It seems to me that the remedy which the plaintiff sought wasnot a remedy, and that the order of refusal now appealed againstwas right.
On these grounds I was of the opinion that the appeal must bedismissed without expressing an opinion on the order of release,leaving that to be decided when the plaintiff applied for a warrant.
I was, and I am still, very unwilling to differ from the rest ofthe Court on the question whether the order of the release wasright.
But as I am forced to give a judgment on that point I mustexpress my opinion fully.
I understand the first objection to the order of release to be,that it was made by the Judge when he was at home, not in Court.
The order was made on a Satu&ay, when a Judge usually is,and certainly in my opinion ought to be, in chambers, and notin Court.
By chambers I do not mean only the stuffy little room whichis all the accommodation usually given to our Judges in this hotcountry—I include ins chambers the judge’s own house, if it besituated in the town where his Court is.
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1896. Much judicial work is properly and legally done in chambers,
V*reS7*%i and in my opinion making an order of commitment or of releasey/*w
of a civil prisoner is a judicial act which can competently be done
La wane, 3. jn cj|amber8} an<j need not necessarily be done in open Court.
So that I think the fact that the order was made on a Saturdayin chambers did not invalidate it.
The next objection taken was that the parties to the actionwere not present before the Judge.
It was not necessary that the plaintiff should be present. WhenI was District Judge, it was the practice for the decree-holder tomove the Court to Commit, and I think some Judges used to refuseto commit a civil debtor unless such a motion was made ; but theCode does not contemplate the presence of the plaintiff decree-holder ; the duty is laid on the Judge to commit, unless the debtorshows sufficient cause to the contrary. The absence of the plaintiff—and he was in fact absent—would not have vitiated an order ofcommitment, and cannot vitiate an order of release.
The debtor was also not before the Judge. This would havebeen a fatal error had the Judge made an order in the debtor’sfavour. Against the order the debtor had nothing to say, doubt-less he thought it admirable.
The decree-holder, the appellant, maintains that the Judge oughtto have committed the debtor ; but the Judge has shown that wasimpossible. The Judge could not sign a commitment which wasunstamped—the plaintiff had not supplied a stamp. The jailercould not receive a prisoner for debt on an unstamped commit-ment. It is plain that the Judge could not have committed, andin fact he did not commit.
It is said he ought to have fallen into the old evil course ofdoing nothing, of delay, of postponement, against which we havebeen struggling and protesting for years; that the Judge ought tohave postponed further consideration of the debtor’s position untilthe following Monday, in order to give time to the plaintiff or hisproctor to furnish the required stamp. Against that proposition Iventured to protest (perhaps with undue vehemency). My opinionis that the Fiscal was functus officio when he fulfilled the ordercontained in the warrant, viz., when he arrested the debtor andbrought him before the Court-^-then the Court had to decide quamprimum whether the man should go to prison or be let at liberty.
This was a matter affecting personal liberty, which the lawgreatly favours. In my opinion it would have been ultra vireshad the District Judge ordered the Fiscal to detain the debtor.The alternative before the Judge was to commit or to release.He could not lawfully commit, because there was no stamp : he
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had no choice; he could not lawfully make any other order thanthat which he did make, the order of release.
For these reasons I would dismiss this appeal.
1896,
Ifarck SI endApril l.
Bonseb, C.J.—
The facts in this case are simple. The appellant, a judgment-creditor, obtained a warrant of execution from the Kandy Courtagainst the person of his debtor. The warrant was executed bythe Deputy Fiscal of Trincomalee, who arrested the debtor and,as required by section 298 of the Civil Procedure Code, brought^rilim to Kandy, in order that he might, “ as soon as practicable, beDrought before the Court.” The Deputy Fiscal with his prisonerarrived in Kandy on a Saturday afternoon when the Court wasnot sitting. The Judge, who was at his own house some distanceaway, was informed by the Secretary of the Court that the debtorhad been brought to the court-house, and that he had admittedthat he had no cause to show against being committed to jail.Thereupon, without having the debtor before him, he made andrecorded an order committing him to jail under section 305 ofthe Civil Procedure Code.
At a later period of the same day the District Judge made andrecorded an order discharging the debtor from custody. Thatorder was also made in his own house, and without having theexecution-debtor before him. The ground of this latter order isstated to be that the appellant had not supplied the stamprequired by the Stamp Ordinance for the warrant of committal.
The execution-creditor, as soon as he came to hear of theseproceedings, applied to the District Judge to cancel his order of^tLischarge. This he refused to do. From that refusal this appealis brought.
In my opinion the appeal should be allowed. The DistrictJudge, not having the debtor before him, had no jurisdiction tomake either an order of committal or of discharge. The DeputyFiscal did not comply with section 298, for the debtor was never“ brought before the Court.” True it is that he was taken to thecourt-house, but that is not what is meant by the words, whichmean that he must be brought before the District Judge actingjudicially. Assuming for the moment that a District Judge canexercise his judicial functions in his private house, it is clearthat he cannot exercise them with respect to a person who is notbefore him. The Cases in which the court can release a judgmentdebtor are specified in section 305; but they are all subject tothe condition that the debtor is brought before the Court. The
Bonhkb. O.J.
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1896. debtor was not brought before the Court, and therefore the order**Aprilwa8 ^dthout jurisdiction.
The proper order will be that both orders be quashed.
It is said that this will be of no use to the appellant. But inmy opinion any person who is prejudiced by an order improperlymade by a District Court is entitled to come to this Court to havethat order set aside. It cannot be said that the appellant was notprejudiced by this order, for he thereby lost the security of theperson of the debtor. Moreover, so long as this order stands hemay be seriously embarrassed by it in any subsequent proceed-ings which he might be advised to take to recover his debt.
Everything which falls from my brother Lawrie is deservingof the greatest respect, but I am not sure that I understand th^expression “chambers” UBed in connection with a District Court;It does not occur, so far as I know, in the Civil Procedure Code,and the fact that all applications are to be made either by way ofaction or petition would seem to imply that they must be made inopen Conrt. The appropriate form that applications made inchambers should take is that of summons. But it is unnecessarynow to decide whether a District Judge can exercise any. andwhich, of his judicial functions elsewhere, than in the buildingappropriated by law or usage as a District Court. It was statedthat Judges of the Court of Chancery in England had grantedtemporary injunctions at their homes and elsewhere, but theoffice of District Judge iB not analogous to that of a Judge of aSuperior Court in England. It may be that in a case of urgencyamounting to necessity a District Judge might so act, but I amclearly of opinion that this was not such a case.
I wish it to be understood that my decision implies no reflectionon the District Judge for being absent from Court at the day andhour in question.