008-NLR-NLR-V-01-MUTTIAH-v.-MUTTUSAMY-et-al.pdf
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MUTTIAH v. MTJTTUSAMY et cd.
D. G., Chilaw, 965.
Civil Procedure Code, chapter XLVII.—Power of Court to vacate an order ofsequestration made on ez parte motion.
A District Judge can, on good cause shown by the party aggrieved,vacate an ex parte order of sequestration which has been made at theinstance of the plaintiff, under the provisions of chapter XLVII. ofthe Civil Procedure Code.
r ■ tHE District Judge having allowed sequestration on theex parte motion of plaintiff, the defendant appeared andmoved to vacate the order of sequestration. The Court held ithad no power to do so.
The defendant appealed.
Van Langenberg, for appellant.
Bawa, for respondent.
Cur. adv. uult.
12th March, 1895. Withers, J.—
We are asked to decide an abstract and a concrete question inthis matter.
The abstract question is one of pure law, and is this : Can theDistrict Judge, on good cause shown by the party aggrieved,vacate an ex parte order of sequestration which he has made atthe instance of the plaintiff under the provisions of chapterXLVII. of the Civil Procedure Code ? Before I can declarethat a District Judge has no poweprto vacate an order of the kindunder these circumstances, I must be satisfied that the power isVOL. I.E
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denied him either by express enactment or by clear implicationin the Code itself. It being nowhere said that he shall not havethe power, is the denial of each power to be clearly implied fromthe words of the Code P
It was argued that we onght to imply a disqualification by reasonof the following considerations : The provisions of this Code aretaken from the repealed Ordinance No. 15 of 1856, with the excep-tion of an important proviso to be found at the end of the 4th sectionof that Ordinance, viz., “ Provided that such sequestration shall“ in all cases be dissolved on the defendant giving security to the“satisfaction of the Court equal to the value of the property“ sequestered."
Non constat that an ex parte order may not be dissolved on goodcause shown by the party whose property has been sequesteredon the ex parte application of the plaintiff; non constat even thata District Judge may not in his judicial discretion in certaincases dissolve such an order on adequate security being furnishedby the defendant.
Then we were asked to infer this qualification because in thischapter there is no provision for the dissolution of an order, asthere is in the next chapter relating to inj unciions. But there is thisdifference in these two chapters : in chapter XLVII. there is noprovision for informing the defendant that the Court will be movedto sequestrate his property. In chapter XLVIII., except in veryrare caseB, a defendant must have notice given him of plaintiff’sintended application for an injunction. If the defendant appearsand shows cause against an injunction, the order is inter partes,and could not be opened up by the Judge except for the provisionsin section 666. In ordinary circumstances he would have toappeal to this Court from an order inter partes. But in the presentcase the defendant would be without a remedy. He could notappeal to this Court because he had not applied to the Court belowto set aside its ex parte order. This procedure has been repeat edlylaid down by this Court as the right procedure.
I therefore do not hesitate to answer the question above statedin the affirmative.
As to the other and concrete question, it is this: Has thedefendant shown good cause why the order of sequestrationshould{not]be dissolved ? He has shown very good cause in myopinion. There was no foundation for the order. There was noevidence that defendant was fraudulently alienating his propertywith intent to avoid payment of the plaintiff’s claim, and, whatis more, the plaintiff swore in support of Mb application for amandate that defendant was indebted to him in the amount
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claimed under hie bond. The bond is not for a debt at all, bnt isfor damage, if any ; and plaintiff makes ont no case of damage inhis affidavit. For these reasons I would set aside the orderappealed from, with costs.
Browne, J.—
The learned District Judge refused to dissolve a sequestrationhe had granted, holding he had right to grant it ex parte, and evenin cases of debts secured by mortgage, when the Court was (as heheld he was) satisfied that the plaintiff had no adequate security.
In appeal the respondent has sought to support his ruling onthe grounds that a Court has no power to dissolve a sequestration(save by consent) when once granted, even ex parte, for the reasonsthat (1) the Civil Procedure Code, by whose express provisionsall procedure is concluded (2 G. L. R. 63), does not supplementthe provisions of sections 651 and 653 by any provision to dissolve,such as is enacted in regard to dissolving injunctions by section666, and removing receivers by section 674; and (2) the omissionof the proviso enabling dissolution in the old procedure underOrdinance No. 15 of 1856, section 4, when adopting the rest thereof.And the absence of any provision of the effect of section 488, CivilProcedure Code (India), or of the provision for release of thedebtor in the English Act while security of the defendant againstdamage is expressly required, indicates that such security wasdesigned as a remedy substituted for discharge of person or releaseof property, and that these reliefs were no longer to be granted.I had so construed these provisions (when like objection wastaken before me in the District Court, Colombo, in actions Nos.C/5,064 and C 5,373), though with reluctance, to hold that theCourt had not the power to reconsider its own ex parte orders anddischarge or release accordingly. In so holding, I would, however(and 1 believe I did), distinguish between cases where it was clearthat the writ should never have issued owing to the absence ofnecessary material, e.g., the affidavit of the plaintiff himself, orhis substitutes authorized by section 655.
Accepting the decision of the rest of the Court that the DistrictCourt has no inherent jurisdiction in this respect which is notexpressly given to it,—and I did not then feel justified in claimingfor it,—-I agree that the material on which this writ issued wasinsufficient, and that the order appealed from herein should be setaside, and defendant’s motion allowed, with costs.
Lawrie, A.C.J.—
In my opinion this sequestration was allowed on insufficientmaterials, and having been allowed ex parte, it ought to have been
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recalled on the motion of the defendant. I would therefore setaside the refusal now under appeal, and remit to the DistrictCourt to dissolve. I would give the defendants their costs ofappeal.
The plaintiff did not make out a primd facie case of fraudulentalienation by the defendants which entitled the plaintiffs tosequestration : something more is necessary than proof of sales ;some facts must be sworn to from which the Court can reasonablyinfer that the sales were not bond fide for fair value. Alienationis not enough, it must be a fraudulent alienation.
Of fraud I find no proof.
On the ground suggested that a District Court, having onceex parte allowed a sequestration to issue, cannot recall it, on goodgrounds shown by the defendant, all I can say is that I do notassent to so novel and, I think, so dangerous and unjust a rule.There is as a rule no appeal against an ex parte order. Theproper course is to apply to the Court which made the order tovacate it on notice to the party who holds the order, and onshowing good grounds that the order had been made on insnffi-cient materials, or was otherwise wrong.
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