( 68 )
1897.1892 and 1896 any property, in support of which it is asserted
AprU8.that writ against the defendant's person was ifesued in October,
1892, in case No. 21,905 of this Court, in consequence of theFiscal having reported that he was not possessed of any property.
** It does not appear that the defendant was arrested, and itmust therefore be presumed that the claim was paid, as indeedthe Fiscal's return shows. However this may be, it does notconcern this Court now whether the defendant was or was notpossessed of property. Nor am I prepared to listen to evidenceon that point, though Mr. Kanakasabhai offers to call witnessesin support of the contention.
“ The time to establish that fact was whilst the first writ was inthe hands of the Fiscal, and the manner of establishing it wasby examination on oath or affirmation of the defendant asprovided by section 219 of the Civil Procedure Code.
" The application is therefore refused with costs.
" The fact that property was only subsequently acquired by thedefendant would have been relevant, and important to establishby way of explaining the delay between 1892 and 1897 in applyingfor fresh writ, had the steps provided for in section 219 been takenon the first application, but they are useless now in the absenceof those steps. A second application would have been refusedeven if made between August and December, 1892."
The plaintiff appealed against this order.
Dornhont, for appellant.
Wendt, for respondent.
Cur. adv. vult.
8th April, 1897. Lawrie, J.—
The District Judge allowed order on the defendant calling onhim to appear and show cause why a fresh writ of executionshould not issue against Bis property for the recovery of theamount of judgment.
The defendant appeared, and the cause he had to show was that,after the last writ was served on him, he paid the whole amountdue, and he moved that the matter be set down for inquiry.
On the day fixed the defendant, instead of adducing evidenceto prove payment, objected that a fresh writ could not issue,because due diligence had not been used on the previous applica-tion to procure complete satisfaction.
The learned District- Judge sustained this objection and dis-charged the rule.
It seems to me that this was wrong.
( 59 )
The execution-debtor had averred that due diligence had beenused, diligence so complete that payment had been enforced. Hecould not after that be heard to say that due diligence had not beenused; these are two contradictory defences. I would set asideand remit to the District Court to proceed with the inquirywhether the defendant paid the amount of the judgment. If hedid not, I think a fresh writ should issue.
Plaintiff to have the costs of this appeal.
1897.April 8.
Withers, J.—
I agree in the order proposed by my brother. The case reliedon by Mr. Domhorsfc does not seem to me to apply to thecircumstance of this case.
A judgment-creditor is not the less entitled to be paid hisjudgment debt because his debtor defers payment as long aspossible. Here, the creditor had applied to renew his writ ofexecution, and the Court summoned the debtor to show cause whythis application should not be allowed. The debtor’s answerwas:—I admit I owed the money, but I have paid it. Apart from11 that, the creditor is in default for not putting in force all the” machinery of the law against me for recovering his judgment** debt, and you, therefore, must not let him attempt to execute“ his judgment.”
This argument prevailed with the judge; but it seems to me tocome with odd effect from the debtor.
It is expected of creditors—in order that litigation may be onceand for all determined—that they should use due diligence inenforcing their judgments. But, surely, it is for the judge,who is asked by the creditor for a second execution, to decidewhether he deserves what he asks for.
If the judge is not prepared to certify that the debtor hassatisfied the judgment-creditor’s claim, I think the execution-creditor ought to be allowed to enforce his judgment accordingly.