036-NLR-NLR-V-08-NARAYAN-CHETTY-v.-JUSEY-SILVA.pdf
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toos.
December 4.
NARAYAN CHETTY ». JUSEY SILVA.
D. 0., Negombo, 4,533.
Notice oh defendant under s. 219 of the Civil Procedure Code—Surrender. ofcertain lands to be sold in satisfaction of decree—Subsequent notice to pro-duce title deeds of lands surrendered—Warrant of arrest on non-appearance.
Per Wendt, J.—.Though bb order made under section 219 of theCivil Procedure Code for a judgment debtor’s attendance before theCourt cannot, if disregarded, be enforced as upon a contempt of <Court,yet, as the Court has an inherent right to summon a party before it,if that summons be disregarded without lawful excuse, it may enforceobedience by warrant.
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HE facts of this case are set out in the judgment ofWendt. J.
Bawa, for appellant.
Cur. adv. cult.
4th December, 1903. Wendt, J.—
-This is an appeal by the defendant in the action against an orderdated 1st October last, directing the issue of a warrant for his arrest.Proceedings had been in progress for executing the decree whichthe plaintiff had obtained against the defendant, and on the 21stJuly the defendant by his proctor filed affidavit and surrenderedcertain lands to be sbld in execution in satisfaction of the decree. .
On the 17th August the plaintiff’s proctor procured the issue ofa notice on the defendant, requiring him to produce his title deedsto the lands referred to in his affidavit.
The notice itself is to be found on page 133 of the record, and itrequired' the defendant to appear before the Court and produce thetitle deeds.
The notice was duly served on the 11th September, but when thematter liras called on the 6th October neither the defendant nor his
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proctor appeared, and the Court decided the issue of a warrant of
arrest. No motion was made thereafter to explain the defendant’s
non-appearance or to vacate the. order, but on the 14th October w«m»tjr.defendant’s proctor presented a petition of appeal, in which theground of appeal is that the order was irregular and contrary to law,apparently^ view of the matter which the petition goes on to state,namely, that the defendant having surrendered property no writcould issue against his person until the lands so surrendered shouldhave been discussed. I understand from this that the proctorthought his client was to be arrested in execution against his person,whereas what the Court ordered on the 6th October was merely aprocess to enforce the defendant’s attendance before the Court.
The defendant’s counsel before us has, however, urged that theCourt had no power to issue such a process, because (he said) theproceeding was in effect one under section 219 for examination ofthe debtor as to his property, and this Court had held, in a casereported in 1 N. L. R.,'49, that an order for a debtor’s attendance ifdisregarded could not be enforced as upon a contempt of Court.
As I have already stated, all the Court sought to effect was theappearance of the debtor, and I am of opinion that the order oughtto, and may be, supported without in any way violating theprinciple laid down in the authority cited that the judgment-debtornoticed under section 219 cannot be punished for a contempt ofCourt. The Court has an inherent right to summon .a party beforeit, and, if that summons be disregarded without lawful excuse, toenforce obedience by warrant. Whether, when attendance has beensecured, the defaulter can be further punished as for a contemptfor disobeying the original mandate of the Court, is a matter whichis not how before us.
I would add that the defendant’s proctor ought, at the veiy leastin courtesy to the Court, to have explained the non-appearanceeither of himself or of his client, and given the Court an opportu-nity, if so advised, to recall the order for the wari*ant before hepresented an appeal to this Court.
The appeal must be dismissed with costs.
Middleton, J.—
I am of the same opinion. I think also that this order might besupported by the terms of sections 137 and .141 of the Civil Proce-dure Code without coming into contact with the decision of the FullCourt,in the case reported in 1 N. L. R. 49.*
' The appellant in this case had the remedy in his own hands;he hhd only to produce the title deeds to the Court, and a warrantneed not have issued.
The appeal is dismissed with, costs.