Rigby J:

This was an appeal from the decision of Mr. Au Ah Wah, President of the Sessions Court, in respect of an Order made by him, acting under O. XXI, r. 27(2), of the Subordinate Courts Rules, 1950, committing the appellant, a judgment debtor, to prison for 21 days for wilfully neglecting to comply with an earlier Order of the Court ordering him to pay a judgment debt and costs by monthly instalments of $50 each. The learned President, at the time of making the committal order, directed that its execution be suspended if the amount ordered to be paid was paid within one month from the date of the making of the Order.

I allowed the appeal but since it involved issues of some practical interest and importance I stated that I would give my reasons in writing. I now do so.

The brief facts of the case were that the appellant was sued by the respondent, a licensed moneylender, for money lent. To that claim he entered a written Defence. Prior to the hearing of the action, by a letter in writing addressed to the Court and dated 14 August 1957, he withdrew his defence and consented to judgment being entered against him for the amount of the claim and costs. He concluded that letter with the paragraph:

I offer to pay the plaintiff the judgment debt by monthly instalments of $50 each with effect from 1 September 1957 and consent to an order being made against me in terms of this offer.

On 20 August 1957, six days later, the learned President give judgment by consent for the amount claimed and costs. In pursuance of the written offer made by the appellant, and in accordance with O. XX, r. 5(1), the President embodied in the Order a direction that the debt be paid by instalments of $50 per month commencing on 1 September 1957, and thereafter on the first day of each succeeding month. The appellant failed to comply with that Order. Indeed, it is admitted that he has only paid $20 towards the satisfaction of this debt.

On 4 December 1957 the respondent sought to execute the judgment by obtaining an Order for seizure and sale of the appellant's property. Unfortunately, those proceedings proved abortive since the goods seized were in fact the property of the partnership in which the appellant was concerned whereas the debt incurred was one by the appellant in his personal capacity. The property accordingly had to be released.

On 5 March 1958 the respondent caused a judgment notice, in Form 23 of the Rules, returnable on the 2 April, to be issued calling upon the debtor to show cause why he should not be committed to prison for wilfully neglecting to comply with the terms of the judgment debt by instalments of $50 a month.

On the return day it was submitted on behalf of the appellant, the judgment debtor, that the Order made on 20 August was not enforceable. In support of that contention reference was made to O. XX r. 5(2). It is. I think, convenient to set out the whole of O. XX r. 5. It provides:

Order for instalments 5 (1) Any debtor against whom judgment has been, or is about to be, given may apply to the Court for leave to pay the judgment debt by instalments, or, if an order for payment by instalments has been made, for leave to pay by reduced instalments, and the Court, after hearing the parties, may make such order as is just.

(2) If any such instalment is more than one calendar month in arrears, the said order shall be deemed to be vacated and the judgment creditor may execute for the whole amount then due on the judgment, but the judgment debtor may apply for another order.

(3) Any judgment creditor may, if an order for payment by instalments has been made, apply that it vacated, or that the instalments be increased, and the Court, after hearing the parties, may make such order as is just.

It was argued on behalf of the judgment creditor that O. XXI r. 27 applied and that as the judgment debtor had been guilty of a contempt of Court the Court could make an order for committal unless the judgment debtor showed c