050-NLR-NLR-V-18-SIDAMPARAM-CHETTY-v.-JAYAWARDENE.pdf
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Present: Pereira J. and Ennis J.SIDAMPABAM CHETTY v. JAYAWARDENE.
113—D. C. Colombo, 19,718.
CtoiJ Prottednre Code, s.for wtit>—Prevention of
eatmition of decree by fraud or force—Notarypracticing hie
profession indoors—*Failure to wwossdor few fcimifttrc.
, The prevention by fraud or force of the execution of a decree inorder to deprive a judgment-debtor of the benefit of section 887 (a)of the Civil Pracetea Code must be strictly traceable to an actdone within the teft yean immediately preceding the date of theapplication for execution. The mere fact that the debtor havingassets, including household furniture, failed to surrender these to betaken in execution, or that he, being a notary, practised bis profes-sion indoors, and thus prevented arrest in execution, does not amountto such fraud or force as is contemplated by the section.
I
K this case the plaintiff applied on April 80, 1934, for executionof the decree dated February 10, 1904. The application was
opposed on the ground that the plaintiff was not entitled to execu-tion of it as it was move than ten years old. The learned DistrictJudge held that the appellant had within the last ten years preventedexecution of the decree by fraud, and that therefore tike plaintiffwas entitled to have it executed, and allowed the applicationwith easts.
The following is the order of the District Judge:—
.
I allow tto sjpBwtloa. Mr. Bamer&wicfereme submitted that themens foci of tfcs de&adant sHSfog behind trellis work end carryingmi Ate esdisnry ATOtnifea &m not constitute fraud, as the tow doesfurrmU a debtor to resist aa, essrotwss by keeping the front doom of
bis tooe*
1M4
shot.
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1141. A gbutcd at® tb* «der November 38, 1910, by * the than Jafigs oftibia Coart, vi &$tmr tiai ib; lofrato ban (ha wy first iBooksfthb awtioo pet obstacle* in (he my of the , plaintiff reen^ing bk^mnbseke. The iafenknt is said to ha a notary,/Bn most have' massets, even in the shape* of fnntee. He has not onrreaderefi themfor execution. He has not stated that he is too poor, and thesefoieenable to pay the otoim. On the contrary, hie contact only leads to Ateassumption that ho has endeavoured to prevent execution by making itimpossible for the officers of lav to enforce execution in any form.This conduct I consider fraudulenttowards the plaintiff. Iallow
plaintiff the costs of this application.
0. 8. fiOBmnsHsn, Acting D J-
Bawa9 K.C., and Bamarawickreme, for defendant, appellant.Bartkolomenaz and P. B. JayatiUthe, for plaintiff, respondent.
Cut. adv. vvlt.
November XI, 19X4. Pereira J.—
This is an appeal by the defendant from an order on an applicationmade by the plaintiff for the issue of execution on the decree enteredup in the case. Under section 837 (a) no application for the esecu-, tion of a decree should be allowed after tire expiration of ten yearsfrom the date of the decree, unless the judgment-debtor has byfraud or force prevented the execution of the decree at some &mewithin ten years immediately before the date of the application.In allowing the application the learned District Judge appears tohave been largely influenced by an order made in the case by anotherJudge, dated the 20th November, 1910. That order, the learnedDistrict Judge says, shows that “ the defendant from the very firstinception of this action put obstacles in the way of the plaintiff in hisefforts to recover his due.’* But, in considering the present applica-tion, we are not concerned with the defendant's conduct since theinception of this action. The question is whether the defendant hasby fraud or force prevented the execution of the decree at some timewithin ten years immediately preceding the application. Of suchfraud or force I see no evidence whatever. The District Judge saysthat the defendant is a notary, and he “ must have some assets, evenin the shape of furniture, but that he has not surrendered these forexecution. ’* . Assuming that, in the case of a notary, the presump-tion is that he has assets, including furniture, the fact that these arenot surrendered by him hardly amounts to fraud or force. Some-thing by way of fraudulent alienation of property might meet therequirements of the proviso to section 387 of the Code, but the facts /relied upon by the District Judge appear to me to be beside thequestion. Perhaps the greatest sin attributable to the defendantwas tiiat he continued to ply the trade of a notary, keeping indoorsall the time. Now, the law forbids the forcing open of the outerdoor of a dwelling-house in order to seize the person under civil
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process (section 80S, Civil Procedure Coda), litis i% a provision
enacted m tits highest intoests oi tie .liberty of toe suBjeet, andj.
lor tits purpose of mafoMmng inviolate as* for as practicable the■
sanctity of one's dwelling-house. I see no difference between ibis
provision being taken advantage of by a person, and the provision Ja^amf^me
of section 884 of the Code to the offset that a proctor is immune
from arrest under civil process whan attending Court for the purpose
of his business, being taken advantage of by a praetor. If taking
advantage of such a provision amounts to baud, both that and the
provision of section 887 of toe Code to toe effect ‘that an application
for execution should not be allowed after the expiration of ten years
horn the date of toe decree sought to be enforced might well be
wiped out of the statute book. It has been said that the defondant
once escaped after attest. This has not been proved, but if he did
so escape he would have forfeited hie right to toe exemption of toe
outer door of his house from being forced open (roe section 888), and
he might have been arrested in his own house.
The Indian eases cited by toe respondent's counsel do not appearto me to apply to the present case. In them the specific acts reliedupon as amounting to fraud or force ate totally different from thpasrelied upon in this case. In Qoundan v. Ohetti1 it was affirmativelyshown tost toe debtor had the means to pay bis debt, and on eachoccasion a warrant was issued for his arrest he succeeded in avoidingcapture by taking refuge in the So^th Aroot district or in someremote part of toe Colrayan Hilla. Each oase must be judgedRecording to its own foots and circumstances. In Amtml v. Taker *there was just that kind of fraud that I have hinted at above,namely, fraudulent alienation of property. The foots are notsimilar to those we have to consider in toe present ease.
For these reasons I would allow the appeal with costs.
Enkis J.—I agree.
Appeal alfowed.
» I. L. R. 6 Mad. 865.
* I. £». B. 4 Med. m.