119-NLR-NLR-V-16-SILVA-v.-FISCAL-,SOUTHERN-PROVINCE.pdf
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Present: Pereira J. and Ennis J.
SILVA i?. FISCAL, SOUTHERN PROVINCE.232—D. C. Gatte, 11,599.
Action against Fiscal for wrongful arrest—Refund of subsistence moneyby Fiscal on the application of plaintiff's proctor—Stay of executionof writ without order of Court.
Orders to withhold execution of process should issue to the Fiscalfrom the Court. The Fiscal has no power to stay the execution ofa writ without an order of Court to that effect; while the Fiscalmay take the risk of acting on applications made to him by parties,he is not bound to do so. The parties should move the Court fororders on him.
'JpHE facts appear from the judgment.
A. St. V. Jayewardene, for plaintiff, appellant.
H. A. Jayewardene, for defendant, respondent.
Cur. adv. vult.
August 22, 1913. Pereiba J.—
In this case the plaintiff claims damages from the defendant, whois the Fiscal of the Southern Province, for an alleged wrongful
1918.
* (1898) 8 N. L. R. 198.
IMS.
Pbbsi&a J.
Silva v.Fiscal, 8. P.
( 452 .)
arrest. The defendant had in his hand a warrant duly issued bythe District Court of Colombo for the arrest of the plaintiff. Themandate contained in this. warrant was in no way interfered withby the Court which issued the warrant, and in pursuance of that'mandate the defendant arrested the plaintiff. It has been urgedthat the defendant allowed the plaintiff to withdraw the subsistencemoney deposited by him as a condition precedent to the arrest ofthe plaintiff, and section 313 of the Civil Procedure Code has beenrelied on. That section enacts that a judgment-debtor shall notbe arrested unless and until the decree-holder pays into Court acertain sum for the subsistence of the debtor until he is broughtbefore the Court. In this case the provision of this section hadbeen duly complied with. The money had been paid into Court,and nothing further was necessary to justify the arrest. The factthat the defendant, on the application of the plaintiff’s proctor,allowed a .refund of the subsistence money did not in any wayinterfere with the defendant’s right and duty to arrest the plaintiffon the warrant issued to him. Orders to withhold execution ofprocess should issue to the Fiscal from the Court. As held inSilva v. Rawier,l the Fiscal has no power to stay the execution of awrit without an order of Court to that effect; and I have no hesitationin saying that while the Fiscal may take the risk of acting onapplications made to him by parties, he is not bound to do so. Theparties should move the Court for orders on him. As observedalready, in the present case there was no withdrawal by the Courtof the mandate issued to the defendant as Fiscal, and I fail to see .that he can be blamed for making the arrest complained of.
I would dismiss the appeal with costs.
Ennis J.—I agree.
Appeal dismissed.
(1906) 10 N. L. R. 56.