051-NLR-NLR-V-41-WILLIAM-SINGHO-v.-A.-G.-A.-MATARA.pdf
HE ARNE J.—William Singho v. A. G. A., Matara.
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Present: Hearne J.
WILLIAM SINGHO v. A. G. A., MATARA.
{Application for Revision and Writ of Quo Warranto No. 523 of 1935.]
Execution—Property exempted from seizure—Implements of trade—Fishingboat—Civil Procedure Code, s. 218 (b).
In section 218 of the Civil Procedure Code regarding property of thejudgment-debtor exempt from seizure or sale, the clause “ as may in theopinion of the Court be necessary to enable him to earn his livelihood ”,qualifies both the words “ tools, utensils and implements of trade orbusiness” and the words “his (an agriculturist’s) implements ofhusbandry ”.
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HIS was an application for revision and for a writ of quo warranto onthe Assistant Government Agent of Matara.
V. Ranawake in support for petitioner.
S. J. C. Schokman, C.C., for first respondent.
O.L. de Kretser, Jr., for second and third-respondents.
Cur. adv. vult.
October 12, 1938. Hearne J.—
– The application before me has been entitled “ an application by way ofrestitutio in integrum or by way of revision and also under section 53 (4) ofthe Courts Ordinance ”.
It refers to a matter that took place some time ago and the responsi-bility for the delay iri the application being listed before this Court isentirely that of the petitioner. I refer to this in view of the applicationmade to me that, in the event of my taking a certain view of the law, timeshould be given to the petitioner to file a further affidavit.
An application was made to the Court by the petitioner which wasdismissed and in December, 1936, a writ was issued to recover costs dueto first respondent. The petitioner’s boats and fishing tackle were seizedon January 23, 1937, and sold to second and third respondents on January30, 1937. The present application to revise the proceedings in executionwas received in the Registry of this Court in September, 1937, and fourdays after its receipt the petitioner’s Proctor was asked to send a copy ofthe petition and affidavit for service on the respondents. This requestwas not complied with till August, 1938, and in September, 1938, therespondents were noticed. The hearing of the application was fixed forOctober 7, 1938, and on October 4, 1938, an affidavit on behalf of therespondents was served upon Counsel for the petitioner. Anotheraffidavit by the petitioner was handed to Counsel for the second and thirdrespondents on October 7, a few minutes before he came to Court, and acopy was found in the office of the Attorney-Gerieral on October 7. It isnot clear when or how it came to be there.
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HEARNE J.—William Singho v. A. G. A., Matara.
In my opinion the petitioner has had all the indulgence that couldreasonably be accorded to him, and it would be manifestly unfair to leavethe second and third respondents in further doubt as to whether theproperties purchased by them in January, 1937, are in reality theirproperties. This application must toe decided on the material now beforeme.
The case for the petitioner is that the properties in question (fishingboats and fishing nets) are saved from seizure by virtue of section 218 ofthe Civil Procedure Code. Section 218 (b) provides that the followingshall not be liable to seizure and sale, namely: —
“ Tools, utensils, and implements of trade or business, and, where thejudgment-debtor is an agriculturist, his implements of husbandry andsuch cattle and seed grain as may in the opinion of the Court benecessary to enable him to earn his livelihood as such. ”
In de Silva v. Konamalai ', it was held that “ a fishing boat is not animplement of trade within the meaning of section 218 of the CivilProcedure Code ”. Had the Judges who decided that case considered theeffect of certain decisions (Lovell v. Hichings" and Smith v. Anderson")on a corresponding provision of English law which is, however, morelimited in its terms, they might have taken a different view of section218, Civil Procedure Code. But I propose to rest my decision on anotherground. Section 218, Civil Procedure Code, does not in my opinionprotect from seizure every fishing boat and every fishing net that aprofessional fisherman owns, but only such “ as may in the opinion of theCourt be necessary to enable him to earn his livelihood ”. In the view Itake of section 218, Civil Procedure Code, the clause I have quoted qualifiesboth the words, “ tools, utensils, and implements of trade or business ”and the words “ his (an agriculturist’s) implements of husbandry, &c. ”It would, I think, be straining the language of section 218 to hold that afisherman who owns a fleet of 100 boats and who requires only ten for thepurpose of earning his livelihood is protected in respect of each one of the100 boats.
I am not satisfied on the material before me that the petitioner’s boatsand fishing nets which were seized are necessary to enable him to earnhis livelihood.
I dismiss the application with costs.
Application re/used.
1 (1928) 30 .V. L. R. 128.» (1903) 1 K. R. 480.
50 L. J. Ch. 39 at p. 43 ; 11 Halsbury.(Old Ed.) 139.