SUPERMANIAN v. PERUMAL

109-NLR-NLR-V-01-SUPERMANIAN-v.-PERUMAL.pdf


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SUPERMANIAN v. PERUMAL.
D. C., Colombo, Cl3,753.
Civil Procedure Code, t». 300, 303, SOS, 307 to 312—Release of judgment-debtor on term*—Alteration of term* of decree—Payment by instalments—Policy of the law as to incarceration of debtors.
Under section 300 of the Civil Procedure Code, when a judgment-debtor is brought before the Court after being arrested in execution ofa decree for money, the Court, in certain circumstances, may, uponsuch terms, if any, as it thinks fit, make an order directing his release—Held, that under this section the Court has no power to alter, to thecreditor's disadvantage, the terms of the decree, and it cannot thereforeallow the debtor the privilege of paying the amount of the decree byinstalments. The terms intended by the section must be terms onerousto the debtor and not to the creditor.
Per Lawrie, J.—The policy of the law now is to discourage theincarceration of honest debtors who, from misfortune and poverty,cannot pay their debts, and to confine the creditor’s remedy of imprison-ing his debtor only, or at least mainly, to cases where the debtor iscontumacious, and will not pay or disclose for seizure funds over whichhe has control.
T
HE facts of the case appear sufficiently in the judgmentsdelivered by their Lordships.
Wendt, for appellant.
Dornhorst and Sampayo, for respondent.
30th August, 1894. Lawrie, A.C.J.—
In this appeal we are called on to decide what are the powersof a District Judge when a judgment-debtor is brought beforehim arreBted on a writ against person.
It must be admitted that it is difficult to reconcile the 300thand the 305th sections of the Code, which both deal with thismatter.
In the former (which is taken from the Indian Code) a discre-tion is given to the Court to release the debtor, either withoutconditions or upon terms, provided it appears to the Court thatthe debtor is unable to pay from poverty or other sufficient cause;and in determining whether he shall exercise the discretion, theJudge may take into consideration the five matters stated in section303, and a judgment-debtor, released under section 300 and 302,may be re-arrested.•
Then, it is somewhat puzzling to find in section 305 that adebtor Bhall be released if he satisfies the Court that he has noseizable property, or that he is ready and willing to point oat allsuch seizable property as h e possesses. It may, I think, be gathered28-
1894.
August 30.
1894.
AwfUitSO.
Lawbi*,
A.C.J.
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from the sections, and from the sections 307-312, that the politerof the law now is to disconrage the incarceration of honest debtorswho, from misfortune and poverty, cannot pay their debts, and toconfine the creditor’s remedy of imprisoning his debtor only, or atleast mainly, to cases where the debtor is contumacious, and willnot pay or disclose for seizure funds which he has control over.Whatever be the District Judge’s power, and whatever be theright given to the debtor by the 305th section, it is in my opinioncertain that the Court has no power given to it to alter the decreeunder which the arrest has been made.
It cannot from pity reduce the debt from Rs. 100,000 toRs. 10,000, nor can it (as the District Judge did here) transformthe decree from Rs. 2,000 into one for a monthly payment ofRs. 50.4
The 300th section speaks of releasing upon terms, but that meansputting the debtor on terms; it does not mean imposing termsunfavourable to the creditor and favourable to the debtor. Inother words, a Judge may not in the order of release alter to thecreditor’s disadvantage the terms of the decree.
In the present case, the debtor did not bring himself withinthe terms of the 305th section. The learned Judge exceeded thepowers given to him by the 300th section. I would set aside theorder, and I would remit the case to the District Court to beproceeded with according to law.
No costs.
Withers, J.—
The order appealed from appears to be contained in a journalentry of the 1st November, 1893, and is as follows :—
“ Defendant will be allowed to pay by instalments of Rs. 50 per“ month from the 5th instant. On failure to pay instalment on or“ before 5th of each month, warrant to issue.” This order was made-,on the occasion of the judgment-debtor in the action on the recordbeing brought before the Court after arrest in execution of themoney decree, and we were told that this was intended to be anorder directing the judgment-debtor’s release on terms undersection 300 of the Civil Procedure Code. But this is not an orderon terms at all. To be released from an arrest otherwise goodis an indulgence which must be paid for. The terms must beonerous to the debtor, and not to the creditor.
Here, a creditor is made to pay for an indulgence to the debtor,which cannot be right.
The order amounts to a modification of the final decree, andthat in itself stamps the order as a wrong one.
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This first part of section 305 of our Code is taken from theIndian Code, section 337, which there falls into its proper positionimmediately preceding section 337 (a), which corresponds to oarsection 300 before referred to. Where the latter and larger partof our 305th section has been taken from, I do not know, but itmust be clearly taken into consideration when a judgment-debtoris brought into Court under a warrant for his arrest. The learnedJudge gave no reasons for his order, which does not expresslydirect the man’s release.
I think the order should be set aside, and the question of theman’s release or committal be further inquired into and deter-mined.
1894.
Augvit 30.
WlTHEBS, J.