068-NLR-NLR-V-11-THE-ATTORNEY–GENERAL-v.-PONNIAH.pdf
( 246 )
Present: The Hon. Sir Joseph T; Hutchinson, Chief Justice,and Mr. Justice Wood Benton.
THE ATTORNEY-GENEBAL v. PONNIAH.
D. G., Batticaloa, 2,457.
Cmon debtor—Arrest—Issue of writ —Return of Fiscal—Expiry of writ—Power of Court to re-issue writ—Breaking open order door ofdwelling-house—Subsistence allowance—Crown not bound to deposit—Release of debtor who has been arrested—Illness of debtor—CivilProcedure Code, ss. 298, 305, 306, 311, 313, 319, 366, and 837.
A Judge has power in any case in which he thinks it right to doso to extend the time for the execution of a writ and to re-isane itwithout any application from the judgment-creditor.
Wood Renton J.—A writ does not ipso jure expire whenthe returnable date has been exceeded.
Section 313 of the Civil Procedure Code, requiring the deposit ofsubsistence allowance before a judgment-debtor is arrested, does notapply where the judgment-creditor is the Crown.
Section 366 of the Civil Procedure Code only applies where theprocess is issued at the suit of a private individual.
Wood Renton J.—Sections 306 and 311 of the Civil Procedure-Code bktd Os Crown.
20-
1908.
August 13.
( 246 )
1908.
August 13.
A
PPEAL by the defendant from an order of the District Judge(G. W. -Woodhouse, Esq.) under section 304 of the Civil
Procedure Code committing him to jail for a period of six months,in execution of a judgment obtained by the Crown against him.
The facts and arguments fully appear in the judgments.
Elliott (with him Balasin,gham), for the defendant, appellant.
W. Pereira, K.C., S.-G., for the Crown.
Gut. adv. vult.
August 13, 1908. Hutchinson C.J.—
This is an appeal by the defendant against an order made onMarch 31 last for his imprisonment as a judgment-debtor.
The plaint in the action was filed in June, 1903. Service was noteffected until September. Final judgment was given on the 3rd.Writs of execution were issued, under which some money was realized,leaving a large balance still due oh .the decree. In January, 1905,notice was served on the defendant to appear before the Court to beexamined, but he did not appear. In February, 1905, fresh noticewas issued, but could not be served. On March 26, 1905, a writ ofexecution was issued, which the Fiscal returned on May 11, 1905,with the report that “ all the available properties have been seizedand sold. ” On June 14, 1905, writs against property and personwere ordered to be issued to Jaffna for execution; the writagainst the person was afterwards returned by the Fiscal of theEastern Province on August 24, 1905, and it was returned onNovember 18 with a report that the debtor could not be arrested, asthe compound gates and the doors of the house were always keptclosed. It was re-issued in December, ,1905, and August, 1906, andFebruary, 1907, with the same result. It was re-issued on October5, 1907, returnable on December 19; no return was made untilJanuary 6, 1908, when the District Judge received a letter from,the Fiscal dated the 4th asking that it might be extended for twomonths and re-issued, and he reussued and extended it accordingly.
On this writ the debtor was arrested on January 16, and broughtbefore the Court. The Judge before whom he was brought was theFiscal who had arrested him; 'he was acting in the absence of theDistrict Judge, and said that he was not aware when as Fiscal hearrested this debtor that the District Judge was absent; he wasunwilling to deal with the matter himself, and he released thedebtor on bail.
On February 4 the debtor appeared before the District Judgeand filed an affidavit, and his proctor urged certain objections to thewrit and the arrest, and objected that the Fiscal’s return on January6 (a mistake, apparently, for the 16th) had not been sworn to; theJudge thereupon sent the return to the Fiscal, and it was sworn to onthe 5th. On the 7th further medical evidence was taken, and the
( 247 )
debtor was examined as to bis means, and declared that be bad no 1908.property, and was a pauper; and the Fiscal gave evidence as to the August 13.arrest. On March. 10 further medical evidence was taken; and Hutchinsonon March 31 the order now under appeal was made.C Jl
I will take the appellant's objections in the order in which theywere put before us.
The first is that when the writ, which was re-issued on October 5,
1907, was returned by the Fiscal on January 4, 1908, it was dead,and that the Fiscal had no right to ask for its re-issue and the Judgehad no power to re-issue it on his own motion. I can find nothingin the Code to prevent the Judge in any case in which he thinks itright to do so extending the time for the execution of a writ andre-issuing it without any application from the creditor.
The second objection is that there was no material as required bysection 298 for the order of June 14, 1905, because the Fiscal’sreturn of May 11 does not say that “he is unable to find anyproperty of the judgment-debtor, movable or immovable. ” TheTetum says that “ all the available properties have been seized andsold, ” and I think that is enough.
The third objection is that the debtor should have received noticebefore the writ of October 5, 1907, wa6 issued, because more thana year had elapsed since the last order on any previous applicationfor execution. But that seems to be a mistake; an order had beenmade in February, 1907, as I have stated above.
The fourth objection is that no subsistence allowance was deposited,as required by section 313, before the arrest. The District Judgethought that that objection was not proved, inasmuch as a sum ofIts. 10 was deposited for the purpose in the kachcheri on the day ofthe arrest, and .there was no evidence to show that it was notdeposited before the arrest. By section 313 the amount paid inhas to be such as the Judge thinks sufficient. This enactment was,
I think, intended for the protection of the revenue; and it is usual,where the judgment-creditor is a private person, for the amountto be approved by the Court and paid in before the warrant ofarrest is issued. In the present case the judgment-creditor wasthe Attorney-General, who sued on behalf of the Government;that was doubtless the reason why the Court did not require theamount to be approved and paid in before the issue of the warrant;it would be a useless proceeding to require Government to takemoney out of one of its pockets and put it in another; and in myopinion this' enactment does not apply .to a case where the creditoris the Government.
The fifth objection is that the Fiscal’s return of January 16, 1908,was not sworn to until February 5. Section 371,‘which is part ofthe chapter dealing with service of process, requires that the return“ shall be accompanied by an affidavit made by the officer chargedwith the duty of executing the process, which affidavit shall set out
( 248 )
1908.
August 13
Hutchinson
C.J.
the facts of the service effected. ” In my opinion, if a return isreceived without the affidavit which ought to accompany it, theCourt should send it back to have the . defect remedied; that wasdone in this case, and the defect, if there was one, was remedied ingood time, and I think this objection ought not to prevail.
The sixth objection is that the Fiscal climbed over the wall of thedebtor’s house in order to get inside and arrest him, and that his doingso was a violation of section 366. That section only applies wherethe “ process is issued at the suit of a private individual. ”
The seventh objection is that the debtor is not in a fit state ofhealth to undergo imprisonment, and therefore he ought to be releasedin accordance with section 867. The District Judge, after con-sidering the medical evidence, found that “ at present the defendantis not in an unfit state to undergo imprisonment, " and I amnot satisfied that that finding was wrong.
Lastly, it was urged that • the debtor was entitled to his releaseunder section 300 or section 311. By section 300 the debtor is tobe released if the Court is satisfied that he is unable to pay theamount of the decree; but before making an order under that sectionthe Court may take into consideration (section 301) any allegationof the decree-holder touching, amongst other- things, .the decreebeing for a sum for which the debtor was bound as a trustee or asacting in any other fiduciary capacity to account, or the transfer,concealment, or removal by him of any part of his property after thecommencement of the action with the object or effect of obstructingor delaying the execution of the decree. By section 311 he is to bedischarged, if he petitions for that purpose, if the Court is satisfiedthat the statements in his affidavit in support of his petition aresubstantially true,, and that he has not done certain things mentionedin sub-sections (6) and (c). The debtor filed an affidavit, as I havestated above, on February 4 last, in which he said that all hisproperty had been sold by the plaintiff, and that for the last threeyearB he had been a pauper, and unable to pay the balance amountof the decree, and that he did not conceal, transfer, or remove anypart of his property since the institution of the action with intentto defraud his creditor. The affidavit does not fulfil all the require-ments of section 307; it does not state the amount or particulars ofpecuniary claims against him or the names or residences of hiscreditors; nor does it appear that any petition was filed. TheSolicitor-General has contended that the Crown is not bound bysection 300 or section 311, but I think that, as the warrant of arrestwas obtained under the provisions of the Code, the provisions ofthose sections must be held to apply when the debtor is broughtbefore the Court under the warrant. The Solicitor-General alsocontends that the debtor had to account for the money for whichhe is sued as a trustee or as acting in some other fiduciary capacity.He was, according to the evidence, storekeeper of the Government
( 249. )
Salt Stores and was bound as such to receive the salt and to issue itupon the authority of the Government Agent, and was responsiblefor its safe custody; he failed to account for a large quantity of it;and the decree was for the value of the salt so unaccounted for.Section 301 does not apply to a petition under section 806 to section311; but I cannot find there was such a petition in this case. Ithink the debtor had to account for the salt, in a fiduciary capacity.This point, however, was not referred to in the District Court.
The District Judge was of opinion that the debtor had not madea full and free disclosure of his assets and liabilities; and I thinkthat he was right in that. But he also says that the decree in thisaction was for money which the defendant had embezzled whilehe was a Government servant, and that he appears to have doneaway with his property in fraud of his creditor. I cannot, however,find in the record any evidence to support either of those statements.'And the fact that he did bis best to evade arrest is no reason forcommitting him to prison.
The debtor has stated in his examination that he had propertiesin Jaffna, but .that he does not know what has become of them, andthat all his property had been sold by the plaintiff. Apart from that,he has given no, information as to what property he had at .the timeof the commencement of the action. In his 'affidavit he admits thatthere was a shortage of salt in the Government Store (meaning the saltfor the value of which this action was brought), but say6 that itwas due to his carelessness, not to dishonesty. On the evidencebefore him the Judge was justified in saying that he was not satisfiedthat the debtor was unable to pay, or that he had no propfertywhich can be sold in execution of the decree. I think the appealshould be dismissed.
Wood Renton J.—
This is an appeal by one Ponniah, a judgment-debtor of the Crown,against an order of the District Judge of Batticaloa under section 304of the Civil Procedure Code, for his committal to jail for a period ofsix months. On behalf of the appellant, Mr. Elliott attacked theorder on a variety of grounds, with which I will now deal, touchingupon the facts only where it id necessary to do so for the purposeof making the point of his argument clear.
The writ on which the debtor was arrested was returnable onOctober 5, 1907. No return to it was, in fact, made till January 6,1908. On that day the following journal entry appears on therecord:“The Fiscal, Eastern Province, returns warrant, and
applies for two months’ extension. Warrant re-issued. ReturnableMarch 12, 1908. ” The debtor was arrested and produced beforethe Court on January 16, 1908. Mr. Elliott argued, however, thatthe writ under which the arrest was effected, not having been
1908.
August 13.
Hutchinson
C.J.
( 250 )
1908.
August 13.
WoodRenton J.
returned on the date fixed in it, viz., October 5, 1907, was dead, andthat the Fiscal had no power to apply for, or the Judge to grant,any extension of its operation. No authority, statutory or judicial,was cited to us in support of this proposition, and I have been unableto find any. On the contrary, section 819 of the Civil ProcedureCode seems to recognize the possibility of execution by the Fiscalbeing effected after “ the latest day specified in the warrant for thereturn thereof ” has passed, and is in any event inconsistent with theview that the warrant ipso jure expires when that date has beenexceeded- I can find nothing in the Code to prevent a Judge fromextending the time for the return of a writ of execution againstperson. Section 305 directs the officer entrusted with the executionof such a writ to bring the debtor before the Court, not on or beforea certain day, but “ with all convenient speed. ” That section saysnothing about any time limit within which the writ must be executed.It prescribes the form (Form' No- 61) of warrant for the ultimatecommitment of the debtor, but no form of warrant for his preliminaryarrest. A form of such a warrant (No. 60) is indeed given inSchedule II. to the Civil Procedure Code. But in that form, again,the Fiscal is directed to bring the debtor before the Court ‘ ‘ with allconvenient speed. ” The warrant contains, it is true, a furtherdirection for its return on a specified date. But in view of theprovisions of sections 305 and 319, I should be disposed to hold thatthe object of this direction was to protect not the debtor, but thecreditor, by keeping the Court in close touch with all that was doneto secure the execution of the writ. In my opinion Mr. Elliott’sfirst objection fails.
His second point was that the original issue (on June 14, 1905)of the writ of execution against the person ot the judgment-debtor was bad, inasmuch as the Fiscal’s return (on May 11, 1905)to the writ of execution against property merely stated that “ allthe available properties have been seized and sold, ” whereassection 298 of the Civil Procedure Code makes a return by the Fiscal“that he is unable to find any.property of the judgment-debtor,movable or immovable, ’’ a condition precedent to the issue, underthe branch of that section with which we are now concerned, of awarrant of arrest. I do not think it is essential that the exactwords of section 298 should be followed in the Fiscal’s return.What is necessary is that the Court should have before it a statementby the Fiscal that there is no property, movable or immovable, bymeans of which the amount leviable under the writ can be satisfied.A statement that “ all the available properties ’’ of the debtor“ have been seized and sold ” substantially predicates the existenceof this state of things. In my-opinion, this objection fails.
Mr. Elliott’s next objection, viz., that the re-issue of .the writagainst the person on October 5, 1907, was bad in virtue of theprovisions of section 347 of the Civil Procedure Code, inasmuch
( 251 )
as the appellant had no notice of the application for re-issue, oneyear having elapsed between the last order and that application, isdisposed of by the fact that, as shown by the journal entries ofFebruary 21 and September 18, 1907, the writ was re-issued withinthe year.
Mr. Elliott’s fourth objection was that the appellant’s arrestwas illegal, inasmuch as, prior to its being effected, no subsistencemoney was paid into Court as section 313 of the Civil ProcedureCode requires. The only evidence that I have found in the recordbearing on this point is the following journal entry under date!February 17, 1908: “ The Fiscal by his letter No. 05 of 15th instantreports deposit of a sum of Rs. 10 in the kaohcheri, on the 16thultimo, for interim subsistence. ” The letter itself will be found atpage 166 of the record. It will be observed that the letter speaks ofa deposit of subsistence money on January 16, 1908, the day of theappellant’s arrest. The learned District Judge says that no evidencewas put before him to show .that the deposit was not made beforethe arrest, and that in the absence of such evidence he must over-rule the objection. In the case of a suit between private individuals,I think that if the point were raised, the burden of proving thatsection 313 had been complied with would rest on the decree-holder.But I think that while section 313 no doubt contemplates to someextent the comfort of the debtor, its main object is the protectionof the revenue. I agree with the Chief Justice that it does not bindthe Crown.
I think that the provision in section 371 of the Civil ProcedureCode that the report of the Fiscal constituting his return to the writ“ shall be accompanied by an- affidavit, ” is directory only, and thatwhere, as in the present case, a return was made without havingbeen sworn to, the defect could be, as it was here, subsequentlyremedied. It could not well be contended that we should attributean imperative force to the additional requirements of section 371,that the Fiscal’s report should be “ fair written, ” and should “ con-cisely state the mode in which the process had been served.” Andalthough the requirement of an affidavit as an exhibit to the returnis no doubt of far greater importance than these, and is one that theCourt ought to see complied with, I do not think that non-compliancewith it in the first instance in any way vitiates the proceedings.
The sixth objection was that the actual arrest of the appellanthad been illegally effected. On this point Mr. Freeman, Fiscal ofthe Eastern Province, gave the following evidence: “ I found thegate of the compound locked with a padlock. I got over the gateinto the compound. The house was open. ” Mr. Freeman enteredin spite of the objection of some of the ladies of the house, andeventually found the appellant hidden under a bed in one of therooms. Mr. Elliott argued that in Ceylon the gate of a compoundis, to all intents and purposes, “ the outer door ” of the “ dwelling
1008.
August 13.
WoodRxnxoh J.
( m )
1908.
August IS.
WoodRbnton J,
house, ” and that Mr. Freeman had praetioally “ forced ” it “ open ”■within the meaning of section 868 of the Civil Procedure Code.Even assuming that Mr. EUiott’s contention as to the gate of thecompound being the “ outer door ” of a Ceylon “ dwelling houseis correct, it would be—if it were necessary to decide the point—aserious question whether an entry effected by climbing over the wallof the compound could be said to be a “ forcing open ” of the “ outerdoor. ” Mr. Elliott urged us .to construe section 366 strictly and infavorem libertatis, and he referred in this connection to In re De Vos.1I do not think that In re De Vos lays down any such principle ofconstruction. The point for decision there was whether a bolt, whichthe Fiscal’s officer had bribed a servant to leave withdrawn, wasplaced in its position merely for purposes of keeping the gate closedto prevent its being accidentally thrown open, or to prevent outsidersfrom entering-. The ..Court held that it belonged to the latter class offastenings, and that as it would have been illegal for the Fiscal towithdraw such a bolt from without himself, it was equally illegalto secure its withdrawal from within by bribery. So far I quiteagree that section 366 should be strictly construed. But it does notfollow that it should be held to extend to acts which by no stretch oflanguage can be said to a forcing open of the outer door, and whichin no way impair the debtor’s security against thieves—the originalraison d’etre it must be remembered of the privilege in question.In England this privilege is strictly construed. “ The rule, ” saidSir Mitchell Foster (Discourse on Homicide, pages 319, 320), " thatevery man’s house is his castle, when applied to the case of arrestson legal process, hath been carried as far as the true principles ofpolitical justice permit, perhaps beyond wha.t in the scale of soundreason and good policy they will warrant …… But this rule is
not one of those that will admit of any extension. It must thereforebe confined to the breach of windows and outward doors, intendedfor the security of the house against persons from without endeavour-ing to break in. ” It has accordingly been held that the maxim doesnot extend to the outer door of a workshop of the judgment-debtor{Hodder v. Williams) 2, or—a case more nearly in point—to an entrymade by climbing over the curtilage wall (Long v■ Clarke 3). It isnot, however, necessary, in the present case, expressly to decidethe point that I have been considering, for section 366 is by its ownterms limited—a limitation rendered s.11 the clearer by the inclusionof the Crown within the purview of section 365, and borrowed, itmay be added, from English Law (see Semaynes case4), to civilprocess .issued at the suit of a private individual.
The next point taken by Mr. Elliott in support of the appealis that, within the meaning of section 837 of the Civil ProcedureCode, the debtor “ is not in a fit state of health to undergo imprison-
» (1901) 2 Browne 357.3 (1894) 1 Q. B. 119.
* (1895) 2 Q. B. 663.* (2 Jae. I.) 5 Coke Rep. 91.
( 253 )
meet. ” I think that from its very nature this provision binds theCrown. I think too that the learned District Judge is wrong inholding that “ section 837 of .the Code requires that the Court shallfirst find that the prisoner is so seriously ill that he canot undergoimprisonment. ” On the other hand, in view of the ample safe-guards provided by .the latter portion of section 837 for the releaseof the debtor in case of supervening unfitness for imprisonment,the mere possibility that imprisonment may tell prejudicially onthe debtor’s health ought not to be too readily regarded as presentunfitness for it. The medical evidence on the question is conflicting.Dr. Oorloff, Provincial Surgeon of the Eastern Province, when firsthe gave evidence, stated only .that “ imprisonment might possiblyhave a prejudicial effect on the general health of the debtor. ”After a further examination of the debtor, however, he committedhimself to the opinion that “ if he is confined in jail, incarcerationwould affect him prejudicially, especially in view of the mentalstrain and anxiety which must result if a man of his social positionand standing be incarcerated, and in view of the present state ofhis health. ” Dr. Oorloff does not say that the debtor is unfit toundergo imprisonment. He only says that imprisonment will affecthim prejudicially. On the other hand, Dr. Eutnam, the Govern-ment Medical Officer, Batticaloa, gives the following evidence:“ Mental emotion may possibly aggravate (.the debtor’s) disorder.Confinement alone will not aggravate it, but the mental state oigrief and emotion resulting from confinement in a jail might aggra-vate his disorder …… If the defendant has rest and good food
and treatment he ought to improve. ” In view of (a) the guardedcharacter of Dr. Oorloff’s evidence, (5) the opinion of Dr. Eutnam,(c) the fact that the debtor, if he is really, as he says, a pauper, ismuch more likely to get the rest and good food and treatmentwhich he needs in prison than out of it, and (d) the statutory facilitiesfor securing his immediate release if imprisonment is found toaggravate his disorder, I am not prepared to differ from the decisionof the District Judge on the point now under consideration.
190&.
Avgust 13.
WoodBenton J.
There remains only the question whether the debtor is entitledto his release under section 300 or section 311 of the Civil ProcedureCode. I think that both those sections bind the Crown. Whenthe Crown has brought a judgment-debtor before the Court undera warrant of arrest issued under .the provisions of the Civil ProcedureCode, it seems reasonable to hold that the Court should have theright to exercise, even as against the Crown, the power with whichsection 300 invests it; section 311 marks the final stage in the pro-cedure, commencing with section 306, by which a debtor may obtainhis discharge on petition. Section 306, which enables any judgment-debtor arrested or imprisoned in execution of a decree for moneyto avail himself of this procedure, must, I think, be held to bindthe Crown. If it does so, section 311 binds the Crown also.
1908.
August 13.
WoodBenton J.
It appears to me, however, that whether viewed from the stand-point of section 800 or from that of section 311, the District Judgewas right in refusing a discharge. If the case comes under section300, he might well doubt, both from the terms of the debtor’saffidavit and from his evidence, the debtor’s inability to pay, andhe was further entitled under section 301 (a) to have regard to thefacts that the decree was for a sum for which the debtor was boundto account in a fiduciary capacity (viz., as a Government storekeeper),and had not accounted. If the case comes under section 311, theJudge might fairly hold on the same materials that the debtor hadnot made a full disclosure of his assets and liabilities. I woulddismiss the appeal.
♦
Appeal dismissed.