067-NLR-NLR-V-19-NADAR-v.-NADAR.pdf
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1916.
Present : Schneider A.J.
NADAR v. NADAR.
292—G. R. Ghilaw, 16,726.
Warrant for arrest of judgment-debtor—Issued before writ of executionagainst -property was issued—Civil Procedure Code, s. 298.
A warrant in execution of a decree cannot issue unless a writagainst property had issued previously.
fJlHE facts are set out in the judgment.
H. Z. Fernando, for defendant, appellant.—:The case is coveredbv authoritv. It was held in several cases that a writ cannot be
V«
issued against the person before writ is issued against property. SeeSoysa v. So-ysa;z Meera Saibo v. Samaranayaka;3 Sinnapper v.Veerapodi;* Costa v. Perera.5
Balasingham, for plaintiff, respondent.—The words in section 298of the Civil Procedure Code “ if before the return to the writ of
» (1885) 14 Q. B. D. 811 C. A.« (1896) 1 N. L. R. 342.
* (1892) 1 S. C. R. 28.* (1898) 3 N. L. R. 254.
5 (1913) 17 N. L. R. 319.
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execution ” indicate only a point of time. A plaintiff may obtain 1916.warrant of arrest before judgment on the ground set out in section Nadar v.298 (d). It would be strange, indeed, if the law is that after judgment Nadarhe cannot apply for warrant of arrest against his judgment-debtorbefore first applying for a writ against property'. What use would•it be to apply for writ against property if the debtor is about to' leave .the Island and there is no property to the knowledge of thecreditor which could be seized.
The cases cited do not apply to the facts of this case. The reasonfor the decision in Meera Saibo D. Samaranayakd1 was that thewrit against property itself was wrongly issued. If a writ cannotbe issued against property for want of due diligence, clearly writagainst person cannot issue at all. If it were issued, it would beillegal.
The ground for the decision in Sinnapper v. Veerapodia was thesame; it was held that the writ against person was ancillary to thewrit against property; or, in other words, where no writ could haveissued against property, the writ which was issued against the personwas illegal. It is not the same thing as saying that writ cannotissue .against person unless writ is first issued against property.
The judgment in Soysa v. Soysa3 is clearly wrong. See thecomments of Bonser C.J. in 3 N. L. R. 255.
The judgment in Costa v. Perera* merely decides that before awarrant of arrest is issued the provisions of section 298 should becomplied with.
It is no authority for the contention that unless a writ againstproperty is issued warrant of arrest cannot be issued.
Cur. adv. vult..
October 6, 1916. Schneider A.J.—
Of consent decree was entered on June 24, 1916, that thedefendant should pay the plaintiff Bs. 200 in two equal instalments,one on June 24, 1915, the other on August 24, 1915. If the firstinstalment was not duly paid, “ writ ” was to be issued for the wholeamount. The defendant paid nothing. On August 4, 1916, theplaintiff filed petition and affidavit alleging that the defendant was" about to leave the Island under circumstances affording reasonableprobability that the judgment-debtor will thereby be obstroctedor delayed in .the execution of the decree,” and prayed for a warrantof arrest. The words of the petition which I have quoted lead tothe inference that the application was intended to be under section298 (d) of the Civil Procedure Code, but it was not expressly sostated in the petition, but the motion stated that the applicationwas under section 298. It is not disputed that this was the firstand only application for execution of the decree. The motion was
* (1896) 1 N. L. R. 342.2 (1898) 3 N. L. R. 254.
3 (1892) 1 S. C. R. 28.
* (1913) 17 N. L. R. 319.
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1916.
SOHNBTDBB
A.J.
adar t>.Nadar
allowed, a warrant issued, and the defendant was arrested andproduced before the Court on August 14, 1916. He stated that hecould not pay the amount, and was committed to jail.
On the next day Mr. Proctor Fernando, who was the defendant’sproctor on record, moved that the defendant be released as thearrest was illegal, inasmuch as no warrant should have issuedbecause no writ against property had been previously issued. OnAugust 16, 1916, the Commissioner framed the issue whether thewarrant had been issued illegally, and a discussion followed uponthis issue. The plaintiff’s counsel did not object to the procedureadopted by Mr. Fernando. I shall, therefore, assume that theplaintiff was a consenting party to the question of the legality ofthe defendant's committal being discussed after the Court had madethe order of committal. I notice that Mr. Fernando’s proxy doesnot axithorize him to appear on behalf of the defendant in theseproceedings, but no objection seems to have been raised on thisscore, and I shall therefore say no more about it.
The substantial question for determination is whether a warrantin execution of a decree can issue unless a writ against propertyhad issued previously. I think it cannot. The only section underwhich a warrant of arrest in execution of a decree can issue is 298.To my mind the language of that section is clear that a Court mayissue a warrant only in one of two events: (1) “ If the Fiscal returnsto the writ of execution that he is unable to find any property of thejudgment-debtor or (2) “ if before the return to the writ of execu-tion is made, the Court is satisfied ” of the matter and things statedin heads (a), (b), (c), and (d) of section 298.
In my opinion the words “ if before the return to the writ ofexecution ” predicate that a writ had issued, and is in the hands ofthe Fiscal. They do not. as was contended by the respondent’scounsel, indicate only a point of time or a stage of the proceedings.He contended that the Code divides the time within which a warrantof arrest may issue into (1) before judgment, (2) before return to a .writ of execution issued to the Fiscal. Such a division is illogical.It should be (1) before judgment, (2) after judgment. According tohis contention, the words of the section should be read “ or if at . anytime after decree, ” instead of “or if before the return to the writof execution is made,'' which are the actual words used. This is acontention which it is impossible to entertain without doingviolence both to the context and the plain and only meaning ofthe words of the section. The only reason given for this construc-tion was that it was inconceivable that a plaintiff should have theright to arrest a defendant before judgment, but that this rightafter decree should be postponed to his first taking out writ againstproperty. I am not touched by this argument. It has no forcewhich appeals to me. The procedure for the arrest of a defendantbefore judgment is founded upon special circumstances which
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may render a judgment subsequently obtained inoperative. Thoseconsiderations do not hold once a decree is obtained. The plaintiffcan at once sue out writ against property, and before return to thewrit obtain a warrant of arrest, if he satisfies the Court of theexistence of the conditions enumerated in sub-sections (a), (b), (cj,and (d). It was also contended for the respondent that section 330provides for cases in which a judgment-creditor is entitled to applyfor execution against the person and property of the judgment-debtor simultaneously. This is true, but it does not help theargument in favour of the respondent. Section 298, as I havealready indicated, is the only section we must look to in determiningthe circumstances under which a warrant may issue for the arrestof a judgment-debtor. After a return of nulla bona to a writ againstproperty has been made by the Fiscal, there is nothing to prevent adecree-holder applying simultaneously for a writ against propertyand for a warrant under section 298.
It is worthy of note that the circumstances mentioned underheads (a) and (b) of section 298 are identically those on which theFiscal would be justified in making a return of nulla bona, and theytherefore favour the construction that a warrant may not be issueduntil after a writ against property has been issued. This construc-tion of section 298 is consonant with the spirit of the Code, whichis to discourage the incarceration of honest debtors, and to confinethe creditor's remedy of imprisoning his debtor to those casesmainly where the debtor is contumacious and will not pay or disclosefor seizure property available for levy. The construction I amplacing on section 298 finds support in the following cases decidedby this Court: Soysa v. Soysa,1 Meera Saibu v. Samaranayaka,aSwapper v. Veerapodi,3 and Costa v. Perera.4, In the last of thesecases it was held that if the conditions of section 298 were notfulfilled, the warrant and all proceedings thereunder were bad.Here there was no application for writ against property before theapplication ,for a warrant, and therefore the conditions of section298 were not complied with.
The application for execution was one year after decree, and ittherefore falls under the provisions of section 337. as held in MeeraSaibu v. Sam-aranayaka2 already quoted above. The provisions ofsection 337 were also not complied with.
I would therefore allow this appeal with costs, and direct thedischarge of the defendant. But I do this with reluctance.
1916
SOHMUDS
A.J.
Nadar v,Nadar
Appeal allowed. 1 2
1 (1892) 1 S. C. R. 28 or 2 C. L. R. 15.. 3 (1898) 3 N. L. R. 254.
2 (1896) 1 N. L. R. 342.* (1913) 17 N. L. R. 319.